An Attempt to Control the New Breed of Lobbyists Or a Missed Opportunity

Home , Edgar Benson, Frank Moores, Harvie Andre, Pat Carney, Ron Duhamel

THE LOBBYISTS RECISTRATION ACT: An Attempt to Control the New Breed of Lobbyists or a Missed Opportunity

Marc Poulin 5929509

A thesis presented to the University of Manitoba in fulfillment of the thesis requirement for the degree of Master of Arts in Political Studies, University of Manitoba

Advisor: K. Brock, University of Manitoba

Winnipeg, Manitoba

Canadian Theses Serv-rce S€rvi

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eanadä THE LOBBYISTS REGISTRATION ACT:

AN ATTEMPT TO CONTROL THE NEW BREED OF LOBBYTSTS

OR A MISSED OPPORTUNITY

MARC POULIN

A thesis subnt¡ned to thc Faculty of Craduate Studies of the U¡riversity of Marritoba in partial fulfìllment of the requirenrerrts of the degree of

MASTER OF ARTS

o 1991

Permission has been granted to the LIBRARY OF THE UNIVER- S¡TY OF MANITOBA to lend or æll copies of this thesis. to the NATIONAL LIBRARY OF CANADA to ¡nicrofilm this thesis and to lend or æll copies oí the f¡¡m, and UNIVERSITY M¡CROFILMS to publisir an absrract of rhis thesis.

The author reserves other publication rights, and neither thc thesis nor extensive extncts frorn it may be pnnteC or otherwise reproduced without the author's writtell permission. I hereby declare that I am the sole author of this thesis.

I authorize the University of Manitoba to lend this thesis to other institutions or individuals for the purpose of scholarly research.

Marc Poulin

I further authorize the University of Manitoba to reproduce this thesis by photocopying or by other means, in total or in part, at the request of other institutions or individuals for the purpose of scholarly research.

Marc Poulin

-il- The University of Manitoba requires the signatures of all persons using or photocopying this thesis. Please sign below, and give address and date.

-ilt- ABSTRACT

The thesis is an assesment of the Lobbyists Registration Act, which was the legislation created by the Conseruative Covernment in 1988 to make the Canadian policy process transparent. ln addition to transparency, the Act was to be drafted in such a way that access to decision-makers would not be impaired but would be assured for all Canadians desirous to make represen' tations to decision-makers. lt was widely inferred that much of public policy was being created on the basis of secretive and improper "deals" negotiated between unrepresentative groups and individuals and the public interest was not being properly served or even considered.

Transparency would help to alleviate this concern.

Firstly, the manner in which policy-making has evolved in Canada is briefly examined. lt is demonstrated that, although "lobbying" is not a new phenomenon, it has become increasingly important and widely used by societal interests to attempt to influence public policy. After demonstrating the rise of professional third-party lobbyists, the thesis turns to the issues which are relevant to drafting legislation causing paid lobbyists to register and identify themselves and their clients. By requiring paid lobbyists to register, it is assumed this would address the need for transparency when the government was making public policy.

Following the development of these ideas, the actual legislation is described and cri- tiqued. A concluding chapter serves as a brief summary of the major findings of the thesis and offers a critical evaluation of the legislation based upon the objectives of transparency and unimpaired access. A final section suggests that the manner in which Canadian public policy is made needs to be closely examined. The nature of lobbying or group politics is such that employing thís technique as the vehicle through which public policy is made is questionable.

There is no doubt that the present method of making policy is in need of change, but the wis-

-tv- dom of legitimating lobbying and group politics as the replacement for sectoral representation is unsure. The unforeseen effects of such a move need to be carefully considered. ACKNOWLEDGEMENTS

Certain individuals that contributed in their own ways to this study deserue to be acknowledged. Travel was essential to gathering the material for this report and countless individuals were instrumental for hospitality I received along the way. These people, too numerous to mention by name, have my profound thanks.

Of course, much of the following project would have been incomplete and less thorough without the information supplied by various interest Broups, M.P.'s, M.L.A.'s throughout the country. Many of these which supplied valuable information for this project did so in the

understanding that their names would be kept confidential and their contribution and wishes for anonymity are acknowledged. Approximately one hundred spokespeople for government departments, associations and interest groups supplied material which has been used for this study. About ten M.L.A.'s and M.P.'s also contributed information to this undertaking.

Others, from my undergraduate to graduate professors deserve and are happily extended sincere thanks for their contributions. My immediate supervisor, Professor Kathy Brock, has my

unending gratitude for helping me through this endeavour. Her comments, criticisms, and

general contribution were helpful more than she will know. She was also helpful in selecting

my examining board, Professors Paul Thomas, Tom Peterson and Barry Ferguson. These professors must also be thanked for their contributions to the improvement and refinement that

occurs before a thesis is submitted for final approval.

Students in the midst of a difficult and time-consuming project often over-look or take for

granted the assistance provided by more immediate colleagues. ln the final analysis, writing a thesis is a "solo effort," fraught with minor and major difficulties and frustrations. However,

-vt- fellow graduate students help create an environment conducive to constructing a lengthy research effort. Two students, Piyoosh Jha and Peter Darke, were especially helpful to the completion of thís work. Further assistance is derived from our able secretarial staff who made other duties more bearable. Though many of these students and staff remain unnamed, their help is gratefully acknowledged.

Finally, there are four individuals which will never understand the crucial role they played in this effort. I speak of my wife, Creta and our three children, Janine, Crystal, and Leah. Until one undertakes a major academic production, one can not appreciate the role a supportive family plays. A professor in one of my undergraduate courses once told me that the academic life is not really meant for a family-oriented individual. This is true for many such individuals.

However, there are a few exceptions. The exceptions are those with a supportive and understanding family. Support can be overt but more often is invisible and comes by the absence of criticism for the many hours spent away from home and an understanding of the "demands of the job." Fortunately, I have been blessed with a family that provides both. My thanks, appre- ciation, and appropriate apologies to them all.

My deepest thanks to all.

Marc Poulin

Winnipeg, 1991

-vll- CONTENTS

ABSTRACT iv ACKNOWLEDGEMENTS... vi

Chapter Page r. TNTRODUCTTON ...... 7

II. THE EVOLUTION OF POLICY.MAKING AND THE RISE OF LOBBYISTS ...... 10

Spatial and Sectoral Representation ' . . . . 13 Thebureaucratsare coming ...... 23 Theprofessional lobbyistcometh . '.....28 Summary ....35 ilt. THECOM|NGOFIEGISLATION... ..,....37 TheCooperCommittee...... 39 Registering the Lobbyist - Some Major lssues . . . 46 Legitimatevsillegitimatelobbying ...... 48 Whoplaystheprofessionallobbyinggame? ..'.'.58 Other lssues .'..65 TheSale of lnformation .'...67 Charterand OtherConcerns . '.. '. '70 The Responsibility of M.P.s ' ' . 72 Business Concerns . " '. '.73 Summary . " .79 tv. A!-AW|SBORN ...... 80

The Legislation BecomesLaw-The Lobbyists RegistrationAct ...... 89 v. ISSUES REVISITED - SOME REMAININC PROBLEMS ,...102 Theexemptions '..104 Voluntaryand lnformal Lobbying ..... '112 Administrative Simplicity .' 116 Alternative Rationales ....119 vt. coNclustoNs ...... 123

Towardsthe future ...... 129

-vilt- Appendix Page

A. PREVIOUS FEDERAL PRIVATE MEMBERS' LOBBYING BILLS . . . . 135

B. THE COURSE OTTHE TRATHROUCH PARIIAMENT ...... ,..138

C. RECOMMENDATIONSOFTHECOOPERCOMMITTEE.... .,.. I4O

D. toBBYtSTS, THETR FTRMS/EMPTOYERS AND PAST POL. ACTIVITIES . . . 744 E. THELOBBYISTSREGISTRATIONACT .....148

F. TIER I AND TIER II LOBBYISTS' REGISTRATION FORMS . . 155 souRcEs .,.159

IIST OF TABLES

Table Page

2.1. The target of lobbying since 1960 . . . ..26

3.1. Classificationof lnterestCroups ...... 53

4.1. WitnessesAppearingbeforeTheCooperCommission ...... 82 4.2, TheLobbyistsRegistrationAct ....'..94

4.3. Knowledge of Registry among Tier ll Lobbyists, 1990 ...... 99

-lx- LIST OF FIGURES

Figure page

2.1. Policy-making in the ideal consociational democracy ...... 15

2.2. Policy-making in consociationalism-weak pol. party system ...... 16 2.3. Pathoflegislationfrominitiationtoimplementation ...... 31

3.1. A continuum of interest Broup classification . . . 54

4.1. An example of a mass mailing . . . BB 6.1. ThePolitical System ....132 Chapter I

INTRODUCTION

The motivation for the following study comes from a comment made by Simon Mclnnes. He notes that "the implementation of any polícy will have both expected and unexpected effects, welcome and unwelcome results. No policy, however carefully designed, will perform exactly as its makers intended."l Careful and thorough research is necessary to avoid unexpected effects and unwelcome results. Even with careful drafting, governments often invoke policy or legislation with unforeseen and often disastrous consequences. Legislation formed without the benefit of thoughtful analysis and foresight usually leads to a host of severe difficulties.

ln the realm of public policy-making, Mclnnes's meaning is illustrated by numerous government policies, decisions and pieces of legislation that caused the "mobilization and growth of organized interests."2 Some of this policy and legislation may have been intended to impact on organized interests, but much was not. This paper contends that any policy or legis-

Iation study the possible unexpected and/or unwelcome impacts of such action.

One such piece of government legislatíon which could have unforeseen and detrimental effects deals with the registration of paid lobbyists. Lobbyists are those individuals who make representations to public offícials, usually claiming to represent some group, association or industry within society. The public officials who are the targets of this lobbying are presumed to be significant players in the formation of public policy. The input of these public officials is assumed to influence the development of government policy and any resultant legislation.

:------' Mclnnes, "The Policy Consequences of Northern Development" in Atkinson and Chandler, The Politics of Canadian Public Policy, Toronto: University of Toronto Press,1983,247. t Col"r"n and Skogstad, Policy Communities and Public Poticy in Canada, Mississauga, Ontario: Copp Clark Pitman Ltd., 1990, 8. -1- 2

Thus, the lobbyist attempts to influence the thinking of the public official who well then help formulate policy and legislation which is agreeable to the group, association or industry whom the lobbyist was representing. "Paid" simply refers to those lobbyists who are compensated, monetarily or otherwise, for makíng the representation.

By requiring paid lobbyists to register and make their dealings with government visible to the public, the government was trying to accommodate that segment of the public which was calling for open policy-making. There was hostility and suspicion over the idea that private deals between unknown interests and government policy makers were the basis on which public policy was being made. These unknown interests were often not representatíve of a significant number of Canadians. The average citizen felt that the public interest was not being properly considered when public policy was being made. Without a public record of those who were lobbying public officials, and on whose behalf, there was no way for the public to be certain that policy was being made fairly and not on the basis of private deals between unrepresentative interests and public officials. Without a public registry, the suspicion and hos- tilíty of the public would remain. Open policy-making, it was argued, was an idea whose time had come.

At the same time as opening up the policy-making process to public scrutiny, legislation requiring paíd lobbyists to register sought to avoid creating barriers which would deter legitimate interests and their lobbyists from gaining access to public officials. The government referred to legitimate lobbying as input which was honest, straight-forward and open; representations from those interests within society who would have no reason to remain hidden from public view. Their interventions in the policy-making process would be both expected and even required for sound policy. Legitimate interests would be truly representative of a significant number of the public and their interests and employ no unsavoury lobbying techniques such as using influence over public figures which resulted from partísan connections or prior favours. Registration would let the general public know who was influencing policy development. 3

Covernment and interest groups are highly interdependent. They both need what the other can offer. Covernments especially value interest groups for the expert information that they possess. lt would not be helpful to create legislation which might inadvertently obstruct helpful interest groups from providing assistance which policy-makers needed. lt was, therefore, incumbent upon government to exercise caution in forming legíslation which would expose and hopefully deter improper lobbying and restore public faith in the integrity of public policy.

Caution would be needed not to impair the access of those interests considered legitimate and desirable.

These tvvo objectives served as the basis for legislation known as the Lobbyìsts Registra- tion Act. They can be summarized as:

1. Policy-making is important and must be, and be perceived as, totally open to the

entire public, As well as being a process which should be open to all for input,

input should actively be encouraged.

2. Policy-making must also be, and be perceived as, above reproach. Access to policy-

makers must not only be guaranteed to all, but be a process that is indifferent to

inside knowledge or connections. Personal acquaintance with influential public fig-

ures or any form of undue influence, or the purchase of the assistance of individu-

als with the potential to unduly influence, should be irrelevant to the outcome of a

lobbying campaign.3

Unimpaired access and open, honest policy-making were the principal objectives of the Lobb- yi sts Re gistrati on Act.

A. Paul Pross, a prominent analyst of Canadian interest group activity notes that

The objectives of the Lobbyists Registration Act are found in many publications, but a good description of them is found in Consumer and Corporate Affairs, "Annual Report for the year ended March 31, 1991," Lobbyists Registration Act, Ottawa: Minister of Supply and Seruices, '1991. registration (of lobbyists)...is a dangerous but necessary instrument. Poorly defined and badly constructed, registration can exacerbate problems now posed by pressure group politics. Sensitively created and implemented, it can be used to mlke pressure group politics an effective and useful part of our policy process.'

Obviously, an effective compromise needed to be achieved if such a sensitive registration scheme was to be realised. The twin objectives of openness and unrestricted access could be viewed as somewhat incompatible or at least difficult to reconcile. Openness and the public scrutiny it entails could dissuade some interests from entering the policy-making process. Both legitimate and illegitimate interests and their lobbyists have valid reasons for avoiding the pub- liciÇ generated by an open public registry, but these reasons are not the same. Legitimate interests might be constrained by their ideology, the desire for privacy, or even from any danger which might result from their views being known publicly. The problem would be that these legitimate interests would still retain their legitimacy while they declined to pafticipate in the policy-making process via registerable lobbying. Illegitimate interests, would, on the other hand, avoid publicity as it might damage their image if their lobbying was deemed corrupt.

Nevertheless, if too much importance was assigned to not impairing access by respecting the right to privacy, openness would invariably suffer. The Lobbyists Registration Act tread on diffí- cult ground and needed to be carefully framed to reconcile these complex and seemingly uncomplimentary objectives.

This is the basic issue to be addressed in this study - was a suitable reconciliation attained? Alternately, was anything substantial achieved? The legislation calling for the registration of paid lobbyists is called The Lobbyists Registration AcL lt will be described, explained, and analyzed with a view to evaluating it against the objectives of achieving openness while not interfering with the input of interest groups into the policy-making process and the administration of public policy. The remainder of this paper will analyze these objectives and discuss relevant issues to the designing and implementation of the Lobbyists Registration Act. a A. Paul Pross, Group Politics and Public Policy, Toronto: Oxford University Press Canada, 1986,266. 5

Through a discussion of the Act's development and the final legislation, the thesis asks whether, or how effectively, these objectives have been achieved with the Lobbyists Registration

Act.

Professional lobbyists, or what are termed third-party lobbyists, are simply the inevitable full-time equivalent of paid lobbyists. Paid lobbyists may or may not work full-time at lobbying, but lobbying is the entire raiso n d'etre for professional lobbyists. Part of the task of chapter two is to provide an understanding of how this breed of lobbyists arose. Chapter two also provides a framework for understanding the current context in which lobbying, and paid lobbying in particular, occurs. Such an understanding helps the reader to judge the effectiveness of the provisions of the Lobbyists Registration Act. As well, the chapter documents past and present policy-making and the accompanying lobbying techniques, demonstrating how paid lobbyists, in particular the professional lobbyist, emerged. Policy-making evolved in such a way that paid and professional lobbyists became essential. The tension between representation based on geography and representation based on sector, which partially explains this policy- making evolution, is also discussed in this chapter.

Chapter three describes the non-legislatíve evolution of the Lobbyists Registration AcL

The major issues in requiring lobbyists to register are identified and discussed. A section of chapter three will present the findings of the Report by the Standing Committee on Elections,

Privileges and Procedure (called the Cooper Committee) which thoroughly investigated the lobbying issue. The deliberations of this Committee were to serve eË the basis for any eventual legislation. As one of the principal motivations for the Lobbyists Registration Act was to curb the real or perceíved unethical and improper behaviour of paid lobbyists (principally professionals), an attempt to distinguish illegitimate lobbying from legitimate lobbying or lobbying which the government both encourages and desires is made here. This distinction is often elu- sive and a brief description of some major lobbyists will suffice to justify this elusiveness. The ties of many major lobbyísts with government, politics and politicians do nothing to stop the 6 suspicion that these paid lobbyists are lobbying improperly by selling access or privileged information which is not available to the general public. Many would consider this unfair since only those who could afford the seruices of these lobbyists would have this privileged information or special access.

Chapter four describes the Lobbyisß Registration Aci. This will permit an analysis of the provisions of the Act and assess the probable success or failure of the legislation in light of its objectives. As well as enabling one to assess how well the provisions of the Act wíll allow pub-

Iic scrutiny of lobbying and the policy-making process, the details of the Lobbyists Registration

Acú demonstrate how dramatically the Act differs from the findings and recommendations of the Cooper Committee. The Lobbyists Registration Act is so radically different from the Coop- er Report that we will never know how successful an act modeled afteì this Committee's recommendations would have been. As well as the departure from the findings of the Cooper

Committee, when compared with the announcement made by Prime Minister Brian Mulroney and Consumer and Corporate Affai/s Discussion Paper on lobbying, it becomes apparent that the Lobbyists Registration Act is radically different from what many originally envisioned. These differences lead directly to three remaining problems which will be identified and discussed in the next chapter.

Chapter five explores some fundamental problems that are not addressed or remedied by the Lobbyisús Registraúion Act. Where available the response of the government to these problems and issues is given. Along with other problems which detract from the over-all effectiveness of the Act, the chapter discusses informal lobbying which is not subiect to registration under the Lobbyists Registraf ion Act. This informal type of lobbying is often very effective. lnformal lobbying, outside the scope of the Act, consists of private communications between individuals and government policy-makers and is therefore difficult, if not virtually impossible to monitor. lt even defies attempts to quantify accurately. The frequent occurrence of informal lobbying is a demonstration of the ineffectiveness of the Act vis-a-vis the objective of open 7 government where the public would be aware of who is influencing the formation of public policy.

As well as the matter of informal lobbying, there are yet other problems which this chapter identifies that combine to seriously undermine the ability of the Act to realise either of the objectives for which it was intended. Other issues which damage the credibility of the Lobb- yisis Registration Acf include the absence of any requirement that lobbyists report how much money was spent by their client or employer on the lobbying campaign. How important was the subject of the lobby to the interest doing or soliciting the lobbying? Vague and unclear terminology is used in the provisions of the Act which open the Act up to various interpreta- tions. The wide range of exempted officials, those individuals who lobby but are excused from registering, undermines the idea of informing the public of who is Iobbying. ln addition, the chapter also explores the problem of investigatory impotence and the issue of volunteer lobbying. As if these problems are not sufficient to question the effectiveness of the Act's promise to inform the public, the existence of contingency fees charged by professional lobbyists provides a tempting incentive for lobbyists to use whatever tactics they can to ensure the success of a lobbying campaign. Contingency fees are payments made by lobbyists' clients which are contingent or dependent on the lobbying being successful. Contingency fees, problematic in and of themselves, may inadvertently encourage informal lobbying and other types of improper lobbying by the incentive to succeed which they provide. Chapter five ends by offering some ideas of possible alternative reasoning for a lobbyists registration scheme, especially given the Act which Canadians received.

Chapter six concludes that the content of the legislation is such that the twin objectives of the registry remain unrealised. The flaws, failures and omissions of the legislation are numerous and serious. The objective of openness - an informed public - is not likely to be achieved.

While it is somewhat early in the life oi the Act to pronounce on its ability to avoid discouraging some interests from participating in the policy-making process (the Act is not yet three I years old), it is reasonable to assume that the Act could also have a discouraging effect on some interest groups.

A final section in this concluding chapter goes beyond a simple analysis of the Act and its shortcomings. lt discusses the possibility that, in addition to the stated objectives of openness or transparency and free and equal access remaining unrealised, the underlying premise of registration may be misguided. This premise is captured in the Preamble to the Lobbyists Registra- tion Act. ln this Preamble, it is declared that lobbying is a legitimate activity. For this reason, the access of interest Broups and their lobbyists to policy-makers is not to be obstructed. This is also the reason why lobbying must be open to public scrutiny. The public needs to see that the policy-making process (and by extension, lobbying) is operating freely and equitably. lf lobbying by society's interests is to be the preferred method of achieving public input in the policy process, then it would only be reasonable and just to strive for openness and unob- structed access. However, before we accept legislation which may entrench this type of public input, it would be worthwhile to reflect upon the desirability of making policy based on a competition between interest groups. This competitíve manner of making policy is the epi- tome of the pluralist argument.

Political reform to garner public participation in the policy process and the associated legitimacy, credibility and compliance with policy that this public participation entails is desper- ately needed. Not only do interest Broups provide a vehicle for public participation, but in addition to the legitimacy which they give to government decisions, they also supply the government with valuable information to make sound policy. The opponents of the process by which the Meech Lake Accord was drafted demonstrated that many Canadians feel excluded from the political process and that policy is being made without due consultation with the citi- zenry for which it is being made. Could not this need for citizen participation be accommodated by making public figures more representative of and accountable to Canadians? Does legitimating lobbying rule out such a quest? The title of this work refers to the possibility of the 9

Lobbyists Registration Acf as being a missed oppoftunity. This is what is meant. The examination of the lobbying issue might have introduced polícy which might have eliminated the need and incentive for lobbying, paid or not. To eliminate the need which creates a problem is far better than putting a bandage on the problem, especially if the bandage is not very good to begin with. lnstead of addressing why lobbying (especially illegitimate lobbying) is deemed so necessary and important, the Lobbyists Registration Acf indirectly encourages the proliferation of lobbying. As well, it could hamper future attempts to reform Parliament and political parties which might restore their representativeness and legitimacy. In the future, the search for legitimacy may not focus on Parliament but on pressure groups. Paul Pross looks upon pressure group politics, if handled and treated correctly, as the possible solution to problems of representation in the Canadian milieu. Pross contends that pressure groups could actually serue to enhance the role of Parliament.S However, he also contends that certain conditions must apply, foremost of which is the representativeness and legitimacy of pressure groups. Accom- panying this condition is the idea that pressure group politics must not be allowed "to shelter in the half-light of politics."6 As shall be demonstrated, the Lobbyists Registration Acf does not accomplish this, but a more important question would be to ascertain if Canadians want public policy made according to the representations of interest Broups, whether or not the process is transparent and professed to be available to all groups for input? Would Canadians accept this approximation to pluralism even if it was functioning as it is supposed to?

Pross, Croup Politics and Public Policy, 1986, 248-61.

tbid,261. Chapter ll

THE EVOLUTION OF POUCY.MAK'NC AND THE RISE OF LOBBYISTS

ln the electoral marketplace, majoritarian winners may gain the contingent consent of minoritarian losers by assuring them that future contests will be fairly conducted-and could result in a reversal of fortune in office-holding and policy-making.7

This quotation by Streek and Schmitter identifies a crucial issue for decision-makers in all countries. These authors contend that fairness in policy-making is the "cement" by which civil soci- eties, especially those making some pretension to be democratic, are maintained. lf policy- making is, or even appears to be made unfairly, social order will break down and the governmental system is in jeopardy of collapse. In such cases, a period of intense social unrest likely followed by some kind of authoritarian rule, is usually the result.B The citizens of a society must feel that their views are considered and have a legitímate chance of impacting on public policy if public policy is to be accepted as legitimate and voluntary compliance with the policy ensured.

Streek and Schmitter address their comments to democratic and industrialised countries in general. Canada features such a polity, but with a strong tradition of elitism. Elitism refers to the practice whereby a small fraction of the entire population of a polity exercise supreme decision making power and the overwhelming majoriÇ of the population outside of these elite bodies have no real say in the functions controlled by these elites. This practice seems to bor- der on something substantially less than democracy. However, an element of democracy is injected by the notion that there is a plurality of elites (economic, political, labour, etc.) which

7 Streek and Schmitter, Private-lnterest Government: Beyond Market and State, London, Beverly Hills, and New Delhi: Sage Publications, 1985,7. B Reginald Harríson, Pluralism and Corporatism: the political evolution of modern democracies, Boston and London: Allen and Unwin, 1980, 64-76

- 10 - 11 compete with each other to shape public policy.e

True democracy was already disadvantaged by the existence of this small elite body of decision-makers. The vast majority of citizens outside of elite bodies would somehow need to feel included in the making of public policies under which they would live. The idea of competing elites, called consociationalism, was central to fulfilling the need to incorporate the bulk of the population into the policy-making process. A society could still be called democratic under consociationalism. Croups of elites, each supposedly representing a sector within the population, would compete with one another for control of the policy process on a given issue. Elites would retain the power to formulate and administer public policy but would have to "successfully accommodate and mediate among the various social, economic, and political interests"l0 in socieÇ. Failure to accommodate and mediate among societal interests would lead to social unrest. Elitism would lose credibility and traditional Canadian characteristics like deference to authority and the quasi-pafticipatory political culturell in which these characteristics exist would be seriously re-examined. Some form of a political system featuring true public participation would come to replace elite governance.

Other writers refer to the phenomenon called consociationalism here as elìte accommo-

datìon. Regardless of the term used, a situation is described whereby interests are represented by a very small proportion of the population and public policy is made on the basis of negoti- t John McMenemy, The Language of Canadian Politics, Toronto: John Wiley and Sons Cana- da, 1980 and Leo Panitch, "The Development of Corporatism in Liberal Democracies" in Comparative Politicalstudies, vol. '10, no. '1, April, 1977 offer two good descriptions of this phenomenon while Dennis Forcese, "Elites and Power ín Canada" in Redekop, ed., Approaches to Canadian Politics, Scarborough: Prentice-Hall Canada, Inc., 1978, 302-22 and Robe¡t Presthus, Elite Accommodation in Canadian Politics, Toronto: Macmillan of Canada, 1973 supplement this description and document some of the important characteristics of this elite body. 10 Landes, The Canadian Polity,2nd ed., Scarborough: Prentice-Hall Canada, lnc., 1987, 230. 11 See Gabriel Almond and Sidney Verba, The Civic Culture: Politicat Attitudes and Democ- racy in Five Nations, Boston: Little and Brown, 1965, 11-26 for a thorough discussion of these terms and a possible typology of political culture. 12 ations and competition among these elites. Hugh Thorburn comments on the nature and longevity of this arrangement. He notes that

(r)epresentatives for such interests as the major banks, raílways, shipping interests and trading companies had, from the very beginning, ongoing relations with the governments in British North America. Policy making was shared between these people and the elected politícians sitting in the Cabinets of Canada and the provinces. Therefore, the pattern of what was later known as elite accommodation, or pressure group politics, was arthríving arrangement from the very beginning of Canada's history as a nation.

The increase in the perception of the illegitimacy of public policy suggests that elítes are not able to successfully contain and accommodate the díversity of demands and opinions which emanate from the Canadian public. Predictably, elite governance is being questioned.

Pross notes that "as recently as the 1960s the general public treated pressure group participation in policy-making as illicit."13 The notion that public participation in politics via group polí- tics and lobbying has diminished markedly since 1970 and the multitude of political interest groups formed in the past two decades is attributable to this increasing acceptance of public participation in politics. This increase in the number of pressure groups suggests that Canada is in the midst of evolving from an apathetic and deferential quasi-participatory political culture to that where more "grass roots" input into governmental decisions is required. Whether traditional Canadian political values would have been replaced by values reluctant to accept elite rule if capable elites had governed which were truly representative of societal interests rather than narrow self-interest is an interesting issue.

What is important to this study is that these complacent and deferential values have changed. Expectations of meaningful participation in the politics of the country have increased and the traditional rule of elites is seen as less and less acceptable and increasingly illegit-

-ate.14 Accompanying this unrepresentativeness of elites and public distrust in their abilities

Thorburn, Interest Groups in the Canadian Federal System, Toronto: University of Toron- to Press, 1985, 3.

Pross, Croup Politics and Public Policy,1986, 53.

An ídeal example of this is the recent difficulty over achieving appropriate Constitutional 13 was the heightened importance of having one's concerns voiced when public policy was

being made. In addition to the perceived unrepresentativeness of elite policy-making, this was

also due to the ever expanding areas in which governments were involved.

One of the elite bodies in this "plurality of elites" featured in Canadian consociational

democracy is the political elite. The political elite has the onerous task of satisfying the societal

demands for mass representation in the formulation of public policy. lt is to this body that we

now turn our attention.

2.7 SPATIAL AND SECTORAI REPRESENTATION

The political elite is an important part of elite policy-making. To the public at large, it is the

most visible elite and charged with the task of allowing the Canadian "masses" to feel that they have a voice in determining the policy by which they are governed. The political elite

comprises the upper echelons of polítical pafties and does not include the rank-and-file mem-

bers of these parties. This elite body was responsible for managing a representative democracy that would permit more public participation in the political affairs of the country, a form of

direct democracy.

Direct democracy is more in vogue in the United States where elections for many positions and referenda are common events. ln contrast to Canadian representative democracy, which is "tailor made" for elite rule, direct democracy allows more citizen participation in

political activities. However, in a poliÇ featuring rule by an elite and executive power concen- trated in a centralized and powerful Cabinet, the notion of direct democracy was not given

amendment. A consistent complaint with the Meech Lake Accord was over the secretíve process by which the agreement was reached. lt was a document designed by an elite, behind closed doors when it would have a profound effect on the Canadian public. lt was elite governance at its finest. lt also proved to be an impoftant factor in the ultimate demise of the Accord. Elite governance no longer was acceptable. 14 serious consíderation. Elites would represent the socíety's interests and govern paternalistically.

To allow the general public to feel they had some input into policy formation, they would be allowed, about once every four years, to elect certain members of the political elite which would represent their interests. Consociationalism, the idea of competing elites was a form of representative democracy and was the closest to direct democracy as Canadian society would come. This version of representative democracy, which was in reality only an effort to appease the "masses" who felt alienated from the governing process, prominently features the political party. Political partíes were charged with aggregating the opinions, views and demands of citizens and groups, articulating the same to the decision-makers who then made public policy.

Figure 2.1 illustrates policy making in the ideal consociational democracy and Figure 2.2 shows policy-making in consociational democracies in whích political parties do not adequately represent societal interests.

A varieÇ of circumstances resulted in the decline of the representative ability of the political party. Cabinet government combined with the internationalisation of economies and the encroachment of the state into socioeconomic areas once outside of government's province were some of the factors responsible for the decline of the political party. These institutions became incapable of adequately representing the needs and wants of many citizens and

Sroups.

Political parties were never really designed to provide the public with input into the making of public policy. lnitially, they were loose organizations of factions within Parliament which joíned together in a coalition to determine which Parliamentarians would form the government. They could be seen as organizations which allowed the public to feel that they did have input into public policy. These institutions were managed and controlled by elites which com- peted with one another for the right to form the government and dispense patronage. Which party formed the government was rather irrelevant. Elite accommodation was still the manner 15

PUBLIC POLICY

Elite a (pol.) I I

I \ I

\l POLITICAL PARTIES

(a) (b) 7 (c) ( d) (e)

SI sl si s I SI on on on o n on ct ct ct c t ct ie ie ie I e ie er er er e r er te te te t e te AS as as a s as It It It I t It

This configuration is a "generic" model of policy-making in consociational democracy. Neo-Marxists subscribe to a theory which sees a corporate or economic elite dominate over all other elites. Other elite theorists hold that some form of "power elite" ultimately makes the final policy decision. ldeally, all elites compete over public policy with no group having an advantage.

Figure 2.1: Policy-making in the ideal consociational democracy

by which public policy was determined. Thorburn offers some insight into the role of political parties and their relative insignificance to the policy process. He writes that

(g)overnments were closely involved in the financing and planning of the rail- ways and other major projects of development. Connections were forged 16

Societal lnterest a Elite A

Societal lnterest b Elite B PUBLIC

Societal lnterest c Elite C

Societal lnterest d Elite D POLICY

Societal Interest e Elite E

These various elites are not intended to represent any particular Eroup but are for illustrative purposes only.

Figure 2.2: Policy-making in consociationalism'weak pol. party system

between these capitalist interests and the political party leaders of Canada, and through them with the governments, provincial and federal. Such well known events as the Pacific Scandal in the 1870s bear witness t1g the close collabora- tive or patronage arrangements that existed at that time.'-

Even at contemporary leadership conventions, the two major national political partíes, the

Liberals and the Progressive Conservatives, do not formulate policy and if policy is made in their conventions, the leader is not bound to it. This differs with the NDP, but various problems with the representativeness of NDP convention delegates caution one agaínst usíng this party as a model for public input via political parties. The NDP does not supply its rank-and-file members with significant input into íts platform.l6 Also, since the NDP has never formed a

Thorburn, lnterest Groups in the Canadian Federal System,19ïs, 3-4.

See Perlin, Party Democracy in Canada, Scarborough, Ontario: Prentice-Hall Canada Ltd., 1988, 272-93 and 305-8 for a further discussion of the democratic practices of our major political pañies at their conventions. 17 national government and therefore has never made public policy on a natíonal scale, its inclu- sion as one of Canada's major political parties is suspect for our purposes.

The problem with the unrepresentativeness of political parties was compounded by a shift in power, first from the elected representatives these political parties sent to Parliament to the political executive, primarily the Cabinet. However, Cabinet was composed of elected politicians and as such, their decisions still retained a degree of legitimacy. However, beginning somewhere after the Second World War, a number of factors led to a further shift of power from the political executive to the bureaucracy. Eventually, the executive was deemed to have lost control over the unaccountable bureaucracy and elected politicians were considered rather irrelevant to the decision-making process. Croups organized to lobby the bureaucracy as there was really no other way to be certain that one's views were incorporated into policy and legislation. lnterest groups thus became an important vehicle for achieving public input into public policy and, as Coleman notes in his review of Pross's Croup Politics and Public Policy, the pressure politics of one interest group often lead to the creation, or politicization, of another interest group to compete with the first interest group.tt ln this way, interest groups proliferated with a commensurate decline in the relevance of political parties and Parliament.

Traditional Canadian consociational democracy was threatened because the political elite could not adequately accommodate politically active societal interests. The political parties could not represent these interests satisfactorally.ls

This refers to the argument Paul Pross makes concerning spatial versus sectoral representation.19 Pross maintains that as sectoral concerns became increasingly important, political par-

17 Coleman, "lnterest Croups and democracy in Canada" in Canadian Public Administration, vol. 30, no. 4, Winter, 1987.

Further documentation and discussion of the declíne of political parties can be found in Pocklington, ed., Liberal Democracy in Canada and the United States, Toronto: Holt, Rinehart and Winston of Canada,1985,346-7 and Chrístian and Campbell, Political Parties and ldeologies in Canada, Toronto: McCraw-Hill Ryerson, 1983.

Pross, Croup Politics and Public Policy, 1986,21-45. 1B ties, designed to accommodate geographic or spatial representation, were unable to adjust to represent the electorate both spatially and sectorally. The importance and relevance of political parties vis-a-vis policy-making began a decline that continues to this day. Pross notes that

(t)he hoopla of party politics cannot conceal the fact that the party rank and file long ago ceased to play an effective role in policy formation and that the vacuum has been filled by pressure groups and the bureaucracy. Party leaders see that constituency organizations lose touch with the policy concerns of individual voters, and that the party thereby loses sensitivity to public opinion, loses status and support, and appears not to be interested in ordinary Canadi- ans. Resources disappear. Civic-minded individuals devote their time, money, and energy to organizations that seem to care more about their public-policy goals and are better prepared to achieve them. The net effect is to make pressure groups competitors of political parties and to lead thoughtful Can4$íans to worry about the danger of Canada's becoming a special interest state.'"

Some observers of interest groups are concerned by this tendency. Marcel Masse is cited as lamenting the imminent demise of political parties at the hands of these encroaching interest groups. Masse and others see political parties as losing in this rivalry with interest groups.21

Parties are seen as vehicles to elect governments whose Cabinet Ministers were increasingly irrelevant to policy-making. Their civil service staff, who were seen as the most significant public actors in the policy-making process, become increasingly coerced by interest groups and their lobbyists' views.

The decline of parties and the accompanying rise of vigourous interest groups sínce the

1960s and 70sis sharply contrasted by the seemingly unassailable pre-eminence of political parties in pre-WW ll Canada. The dominance of the party was accompanied by the subordinate and vastly inferior position of interest groups. S.D. Clark, in a 1939 study of one of Canada's oldest pressure groups, notes that

(o)nly on non-partisan measures have outside organizations influenced the voting of members of Parliament. ln general elections, voting has been almost wholly determined by the political strength of political parties. lt is questionable whether, in any election, an organization such as thej!'lanufacturers'Asso- ciation has had any appreciable effect upon the outcome.-- n Ibid, 209.

21 Dougherty, "Lobbying threatens parties: Masse" in The Montreal Cazette, Wednesday, December 3, 1986, 88. 19

One could hardly voice similar sentiments of political parties and elections today. Clark does hasten to add that this does not mean that "interest groups have (not) played an important role in Canadian politics,"23 oonly that then they were considerably less important than political parties.

Politically active interest groups emerged to fill the void left by this inability of political parties to properly accommodate sectoral interests. Interest groups, hitherto mainly apolitical

(when their interests were adequately addressed and represented by political parties or other political institutions), commenced various political activities, beginning to represent their members according to sector. lnterest groups, which have been with civilisation for many hundreds of years as relatively non-political actors, could be viewed as a stabilizing force in the Canadian polity. They complemented the political party and allowed elite policy-making to ìontinue.

Societal interests felt that their concerns were properly represented and duly considered when the elites were formulating policy. Elites now informed by society's interests via interest groups could now make policy and representative democracy could proceed, chastised but still intact.

However, policy was not guaranteed to accurately reflect the wíshes of the public.

The current problem is that elite policy-making, as recent attempts at constitutional amendment have underscored, is no longer tolerated and is publicly condemned as illegitimate in the same way that policy formation via professional lobbyists with their perceived privileged access is decried. Interest Broups seemed no better at representing society's interests than were political parties. The leaders might speak for a particular interest, but not on behalf of the individuals which make up the interest. Either interest groups became controlled by self- interested elites, themselves, or they were unable to get their message through to policy-makers. ln reality, it was a little of both. Concerning the latter difficulty for interest groups, which is our principal concern here, Pross notes that "even affluent and established groups cannot

Clark, Ihe Canadian Manufacturers' Association, 1939, xi.

23 rbid. 20 make an impression on policy if they are denied access to the flow of information (of government processes) and if they are granted no opportunity to present their case."24

The general public seems to want fair and equal representation among policy-makers and equal access to these figures, who are, in the final analysis, the representatives of this public.

Elite decision making lacks legitimacy. Pross sums it up this way:

Parliament (part of the political elite), the country's pre-eminent legitimating institution, proved less and less competent to cope with questions that a modern economy places on the public agenda, while the institutions that could effectively deal with those questions (Cabinet, the bureaucracy, federal-provincial conferences and pressure groups --- other elites and their representatives) gradually came to be seen as lackíng the legitimacy that ryguld ensure public acceptance of the policies and programs they had devised."

Parliament, that portion of the political elite most visible to the public, was perceived as unable to play the traditional role of legitimation.

One of the characteristics of the interest group is that "interest groups only seek to influence policy-making; they do not seek to exercise power, themselves."26 This feature is what distinguishes the pressure group from the political party. This distinction is crucial to note as many of the functions of interest troups are identical to those functions performed by political parties. lf the representativeness of interest groups causes these groups to be given official legitimacy via registration, it is not clear what will become of this distinction. lnterest groups will, de facto, be given power to make public policy and may become indistinguishable from the political party. Neither is it clear what the role of the present political party representatives will be. This is a very important issue with dire possible consequences which will be further explored in the concluding chapter of this analysis.

24 Pross, Group Politics and Public Policy, 1986,270.

2s rbid,24g. 26 rbid, 4. 21

Pross calls the political interest group a pressure group and distinguishes the two forms of

groups from one another.2T lnterest groups are more of a sociological phenomenon which

involves the collection and grouping together of similar minded individuals. Pressure groups

are merely the extension of these groups into politics where the group seeks to influence

public policy. Only the political actions of interest groups, i.e. the lobbying of public officials

with the intent of influencing the making and/or administration of publíc policy, is of concern

here. Therefore, unless othe¡'wise specified, the terms interest group and pressure group can

be thought of as meaning the same thing for the remainder of this paper. This slight muddying

of the facts is rather insignificant:

The concept of interest group, then, represents more a sociological orientation, whíle our use of the term pressure group - by virtue of its focus upon influence - represents more of a political orientation. However, with this discussion in mind, no great harm would befall a student who wished to employ the terms interchangeably...'"

Aside from interest and pressure Broups, there is another impoftant distinction to note.

Among the groups referred to as interest groups, there are those which are deemed public

interest groups and those called private or special interest groups. There are important differ-

ences between the tlvo brands of interest groups, but to discuss them in any detail would not

be appropriate to this paper. The two most notable differences revolve around the goals of

the interest group. A public interest group is defined as a collection of citizens into an organ-

ized group "that seeks a collective good, the achievement of which will not selectively and

materially benefit the membership or activists of the organization."29 Private interest groups,

on the other hand, would be the opposite. They would be interested in common goals that would materially benefit their members.

tbid, 4-8.

Pocklington, ed., Liberal Democracy in Canada and the United Sfates, 1985, 343.

Berry, Lobbying for the People, 1977, 7. 22

The other major difference between the two types of interest groups involves the strat- egies they use which are largely determined by their organizational characteristics. At least in the United States, public interest Broups tend to be less democratic than private interest groupr.to Neither public nor private interest groups are particularly democratic. Those dis- mayed with the unrepresentativeness and undemocratic tendencies seen in Parliament should exercise caution in turning to interest group representation as a remedy to this problem. More crucial to this thesis though, is the fact that both private and public interest groups make use of paid, professional lobbyists. As well, a related issue concerns the oligarchial tendencies of

group." *hy would interest groups would be exempt from evolving into elitist bodies "ny which could not successfully represent their rank-and-file members, either?

tbid, 187-193.

31 Michels, Political Parties: A Sociological Study of the Oligarchial Tendencies of Modern Democracies, London: Collier Books, 1962. 23

2.2 THE BUREAUCRATS ARE COMING

With the expansion of government into traditionally non-Bovernmental "r"*," many interest groups, now politically active, increasingly sought, some successfully, a position from which they could exact a high degree of influence on public policy. Traditional avenues of input were seen as not functioning properly. As government activity in the daily líves of Canadians grew, individual Cabinet Ministers relied increasingly on a blossoming bureaucracy to supply the agenda from which the issues to be addressed by policy were selected. They would then also supply the information required to make intelligent policy concerning these issues. Over- whelming governmental responsibilities led to an inevitable reliance on technically informed bureaucrats and a díffusion of authority to this appointed body. Cood polícy in the diverse and numerous areas in which government was involved demanded the input of well-informed experts. Members of Parliament, specifically the elected Cabinet Ministers, were unable to develop the expertise needed to legislate properly in their numerous jurisdictions. Time con- straints and other dutíes rendered them reliant on unelected help. lncreased citizen self-awareness and the associated demands for more seruices33 also led to an expansion in both the bureaucracy and interest group activity. The complex demands of a pan-Canadian and an international economy created a need for specialised and expert officials to advise government policy-makers, as well. lnterest groups and bureaucracy charged to the rescue of burdened Parlia- mentarians who were incapable of managing and legislating in these areas.

ln a rather ironic way, the proliferation of the bureaucracy serves as a check on elected officials to ensure that these officials do not discard principles of democracy and rule arbitrari- ly. The argument is that as civil servants are normally permanent and non-political positions, they will see to the adminístration of government efficiently, regardless of which political party

This expansion has largely occurred since 1930, most significantly after WW ll. See Cra- natstein, The Ottawa Men: The Civil Service Mandarins, chapters 2-4 Íor a thorough discussion and documentation of the gradual but relentless extension of the Canadian state since the 1930's.

Paltiel, "Changing Environment and Special Interest Croups" in Canadian Public Adminis- tration, v. 25, no. 2, Summer, 1982. 24 forms the government. This non-paftisan nature of the bureaucracy is, however, not always observed. The general rule of non-partisanship is not immutable and the manoeuvring of many professional lobbyists demonstrates this. The ease with which governments and lobbying firms swap personnel, depending on the party in government, is alarming. The non-political nature of civil seruice jobs normally holds for all but senior civil servants who are often recruited or

"borrowed" from the ranks of professional lobbying firms. This "borrowing" seems to depend much more on the partisanship of the lobbyist than on his or her expertise.

The permanency of the civil se¡vice has also contributed to the increased importance of this non-elected body as a target of lobbyists. Compared to civil seruants, elected M.P.'s serue short-term positions and hence do not develop the skill or expertise to rival the bureaucracy.

Cabinet Ministers, the only Government Department officials who are elected, are obliged to secure and solicit the superior advice of their civil seruants. lf sound public policy is to be made and Cabinet Ministers are to receive any congratulations, it is imperative that the bureaucracy is consulted and their advice heeded.

The importance of the bureaucracy should not be taken to mean that bureaucrats are either indispensable or infallible.34 Bureaucrats rely on other actors in the relevant policy community, those governmental and non-governmental actors concerned with a particular policy or piece of legislation together with the corresponding attentive or concerned public.3t Thur" other actors are, by and large, pressure groups. Thorburn states that "(c)ommunities of interest developed, composed of politicians, bureaucrats and interest group representatives organized along functional (or sectoral) lines."36 However, it is left, to a large extent, on the whims of particular bureaucrats as to which interest groups will be included in the policy communities

34 Campbell and Szablowskí, Ihe superbureaucrats: structure and behaviour in central agencies, Toronto: MacMillan of Canada, 1979.

35 For a lengthier explanation of the term, policy communìty, see the introductory chapter by Coleman and Skogstad, Policy Communities and Public Policy in Canada, 1990.

Thorburn, lnterest Groups in the Canadian Federal System, 1985, 4. 25 making policy in a particular sector. Certain groups are automatically included, but policy communities are dynamic and bureaucrats and central agencies can play a huge role in the evolution and development of a policy community.

Policy-making was a complicated matter in the days when governments were expanding into formerly non-governmental areas. The bureaucracy, anxious to excel in its new role, adapted quite rapidly to the new expectations placed on it. As well as expanding extensively, it was becoming increasingly important as a point of access which interest groups could use to make their sectoral views known. The bureaucracy was also becoming, out of necessity, increasingly technocratic.3t Th" trick of conducting a successful lobby or attempted influence campaign lay in knowing the centrality of the bureaucracy and then somehow discovering where and when one should initiate contact with the bureaucracy.3S Th" bureaucracy, not Par- liament had become the most important actor within the policy-making process. "Parlíament, in other words, is the last line of defence. lt is only used when all other efforts have been expended without success."39 Finding the correct bureaucratic department and then finding out who within that department was the one to speak with and when to interuene was the major work necessary in order to have a chance of influencing the relevant policy. Table 2.1 shows the relevance of the bureaucracy to the policy-making process. The bureaucracy, which is the target of more than 40 per cent of contemporary lobbying, is increasingly relevant to the policy-making process. No accurate data exist for the period prior to 1960, but the indication is that the bureaucracy has increased in its importance as a target of lobbying.

37 The term "technocratic" refers to the expertise resident in and required by the expanding bureaucracy. Bureaucrats with expertise and capable of intense technical discussions with specific segments of society were recruited to positions within the enlarging bureaucracy. John Kenneth Galbraith gives a good description of the technocratic nature of the bureaucracy in The New lndustrial State, 1970, 46-52. 38 Stanbury, Business-Covernment Relations in Canada, Toronto: Methuen Publishing, 1986,244-5. 3e Cillies and Piggot, "Participation in the Legislative Process Process" in Canadian Public Administration, vol. 25, no. 2, 1982 as quoted in Stanbury, Business-Covernment Rela- tions in Canada, 1986. 26

TABLE 2.1

The target of lobbying since 1960

Location 1 960-1 989

Bureaucracy 40% Legislators 20% -70/ Legislative Commíttees Cabinet 19o/o Executive Assistants 5o/o Judiciary 3o/o Others 6Vo

SOURCES: The data on lobbying since'1960 is derived from Carson, The Registration of Lobbyists, 19BB and Stanbury,Business- Covernment Relations in Canada,1986.

Covernments realised how important it was to assure that interest groups had even access to decision-makers to maintain political stability and the difficulty interest groups could have in achieving this access. The need for input from interest groups because of their alleged sectoral

4o representativeness-" made governments anxious to be seen as ensuring that no one group received any unfair advantage in the task of achieving access to decision makers. lt could be disastrous if groups were to perceive that certain interests had an unfair advantage in the pur- suit of influencing policy.al Covernments and the policy-making system would lose even more support and credibility and unfair policy would result. Uneven access is endemic in the policy-making process, but if this uneven access was systemic and due to privileged knowledge of the policy-making process, familiarity with specific policy-makers or other unacceptable reasons, government would be called upon to eliminate the uneven access which resulted from these things.

40 For a discussion of other important functions which interest Broups perform in the political mileu, see Pross, Croup Politics and Public Policy, 1986, 87-96. Briefly, these functions include interest promotion (aggregation and articulation), communication between governments and socíetal interests, legitimation, regulation, and administration of public policy.

41 Thorburn, lnterest Croups in the Canadìan Federal System,19B5, 130'1. 27

Covernment considers the input of societal interests so important that they regularly cre-

ate interest groups. Such state-funded and engineered interest groups are given the title of

reverse interest groups. These interest groups, which are reliant upon the government for

much of their funding, can then be consulted about public policy in a certain area, and, if the

group has managed to create a membership, i.e. they can legitimately make the claim to rep-

resent a certain constituency, the policy which is made can thus be deemed as legitimate.a2

Aside from reliable and accurate technical information, one of the principal functions of an

interest group is to provide legitimation for government policy and often to aid in the administration of the policy which it has legitimated. The government can claim to have consulted with the appropriate interest troup prior to designing the policy.

However, there are times when the policy communitya3 is already crowded, which is to say, that it would prove very difficult, if not impossible, for the government to create another

interest group which would be under its control. ln such a situation, the government, if desi-

rous to pursue unpopular policy alternatives in spite of the input (usually opposition) from the

relevant sectors of the policy community, can do one of three things:

1. It can choose to abandon its desired policy initíative and thereby heed the advice

of the actors within the policy communiÇ.

) It can declare that the interest groups are illegitimate as they do not represent a

significant portion of individuals from the attentive public.

42 The creation and sustenance of interest groups by government not only is a common occurence and illustrates the importance that governments place on interest groups, but has other more negative effects. lf dependent on government for their very existence, these groups, curiously called "reverse" interest groups, are liable to become mere "mouthpieces" for government. Such interest Broups may become increasingly detached from the constituents they are supposed to represent and while considered legitimate by government, they grow more and more distant and illegitimate to the public they are meant to represent. This is commonly referred to as the problem of maintaining autonomy in such groups. See Pross, Group Politics and Public Policy, 1986,267-68.

Atkinson and Coleman, Industrial Policy in Canada, 1989,7-10. 28

3. lt can begin a process of "co-optation." This involves somehow securing the elites

of the interest groups which are active in a policy community. Normally, the staff

and/or President of the most relevant interest group is simply "purchased." This can

be accomplished in one of a number of ways. The usual method is simply to "hire"

the organization to be the official representative of government in the policy area

and pay the salaries and expenses of the targetted interest group. Such "free" mon-

ey is difficult to refuse.

Point numbers two and three would likely be the course followed if the government intended to pass the legislation despite all opposition or advice to the contrary. However, all of the above tactics íllustrate the importance of interest groups to government. lnterest groups prove very beneficíal to governments when certain policy is being discussed, if the group is "on-síde." To ensure these groups are on-side, governments have to consider, and often heed the counsel of these groups. This counsel is offered via lobbying. Lobbying the proper people in government at the proper time was rapidly becoming a very important exercise. Successful lobbying campaigns could and did provide huge dividends. ln the estimation of many interests in society, whatever their stage of organizational development, it rvas realised that lobbying the government was tremendously important and these interests wanted in.

2.3 THE PROFESSIONAT TOBBY¡ST COMETH

"ln pressure group politics access is the key to influence."44 This comment reveals why paíd lobbyists emerged and why they are considered so essential to our political system. While it is certainly true that "(a)ccess alone will not ensure that a Broup will be successful in influencing government,"45 without access, the most informed and credible interest groups will have, at

44 Pross, Croup Politics and Public Policy, 1986,256.

Thorburn, Interest Groups in the Canadian Federal System,19B5, 6. 29 best, only minimal effect on public policy. Lobbyists, it is held, have the key whích unlocks access to the system. Professional lobbyists are simply paid lobbyists who "rent" their lobbying seruices to clients who can pay their fees, They are considered more effective lobbyists than most unpaid lobbyists and in-house lobbyists (full-time employees in the Covernment Rela- tions Office of a corporation) as they normally have a degree of expertise in the political arena, personal contacts with some policy-makers, familiariÇ with the policy process and they work at the lobbying business on a full-time basis.

There are a number of methods of lobbying, both direct and indirect. Direct lobbying involves direct personal interaction (often discrete and not usually adversarial) with members of government or other influential policy-makers. lndirect lobbying entails methods such as media exposure, Ietter writing campaigns, protests, etc. Of the two types of lobbying, it is well understood by those in the business that indirect lobbying is not normally as successful as direct lobbying. Direct lobbying is much more likely to have an influence on policy.

The elitist, technicat, often informal, and centrally diffuseda6 nature of Canadian public policy-making created an environment which virtually demanded the rise of a professional lobbyist. The need for interest groups to achieve input into public policy was increasingly important. The competition between groups was also increasing. Any advantage which might secure beneficial legislation for a particular interest group would be sought. Professional lobbyists were deemed able to provide such an advantage both because of their inside knowledge of the policy process and the personal acquaintance they enjoyed with influential policy-makers. Whether or not they ever used these personal acquaintances w¿rs irrelevant, they possessed them and were therefore able to use them. The knowledge by prospective clients that

46 This apparent contradiction in terms refers to the centralization of political power in central agencies while the federal nature and dirigiste tendencies within the Canadian polity are responsible for diffusion. Faulkner notes that the system appears to concentrate power in a centralized fashion, but, in reality, collegiality and the policy expenditure management system produce a system in which decision makíng power is highly diffused (Faulk- ner, "Pressuring the Executive" in Canadian Publìc Administration, vol. 25, Summer, 1982). 30 professional lobbyists were friends with a certain Cabinet Minister might cause this client to hire the lobbyist.

What had become common was that former members of the bureaucracy and other former civil servants, as well as those who had worked for political parties, opened up businesses they called "government consulting firms" or "public relations offices." The special informatíon possessed or avaílable to these "consultants" would assist desirous interest groups or individuals in acquiring the necessary information to successfully influence policy. ln some instances, these "consultants" would even assist the group with the lobbying effort by making the correct contacts, scheduling and attending meetings with the relevant policy-makers, etc. In certain cases, it was feared that they even used the personal contacts they had developed while seruing in politics to aid the lobby on which they were working.

The course of legislation from the drafting stage to Royal Assent is long and can be quite difficult to penetrate. Cenerally, legislation is said to go through three phases (see Figure 2.3):

1) the pre-Parliamentary phase,2) the Parliamentary stage, and 3) the post-Parliamentary stage.

Only in the first and third phases does a good lobbyist intervene as these steps are noted as the only stages at which there is any realistic chance of influencing policy. A recent occurence in Canadian politics has witnessed an increased importance of the Parliamentary stage. This is

Iargely due to the increased ability of Parliamentary committees to investigate issues thoroughly, the relative stability of many Standing Committees' membership, independent information and assistance, etc. However, the key difference is to note that regardless of the increasing power of Parliamentary committees, it is still necessary for these committees to influence the legislation or policy prior to the formal Parliamentary stage and government commitment.

Once the issue has reached the Parliamentary stage, lobbyists usually only monitor the progress of legislation to ensure that the minor changes which might be made are not incompatible with tlre original thrust of the legislation. The basic content of legislation is usually decided prior to the Parliamentary stage and lobbying at this stage is often the result of unsuccessful 31

Major Stages Details

The Pre-Parliamentary Phase Policy lnititation:

-perceiving a need for -policy development

Feasibility testíng:

-circulation of proposal throughout government -trial balloons (media, outside experts, etc.) -evaluation and/or modification -preparatíon of Cabinet document

The Parliamentary Phase -mostly ceremonial though some meaningful events do occur. Through various devices such as Royal Commissions, Task Forces and meaningful Legislative committees, it is hoped that the role of Parliament will be enhanced.

The Post-Parliamentary Phase -implementation and administration (involving bureaucracy, judiciary)

Figure 2.3: Path of legislation from initiation to implementation

lobbying in Stage One or an attempt to secure a beneficial interpretation of legislation which will enable an organization or interest to "live with" the legislation. 32

Since stage 3 is basically the way in which the bureaucracy administers and interprets a policy or Iegislation, it is noted that "pressure Broup representatives (know) to get to decision makers before the Parliamentary stage is reached."47 lTis, therefore, essential to be intricately knowledgeable of events that are occuring within the "minds" of those concerned in the pre-

Parliamentary phase. Enter, professional lobbyists. Their key is information about the policy process and it is reasonable that they would evolve and supply the information needed to make an effective impact on policy developments.

The assistance of these professional lobbyists, which invariably proves to be invaluable, is offered for a price, often a very substantial price. The fees charged by most professional lobbyists average to be around $3,000 to $4,000 per month.aB Lobbyirt, could sell their information and image as "in-the-know" individuals, or even capitalize on personal acquaintances with decision-makers to provide the access to interests which needed to present their case to the proper decision-maker. These methods are not considered acceptable, especially when access is so important. The problem, then, was how to rein in these potentially dangerous lobbyists without hindering legitimate lobbying so necessary to good policy-making.

Attempts to introduce legislation which would specifically apply to lobbying were begun, but nothing signíficant was accomplished until recently. The matter of influencing public officials was not totally wide open and unregulated. However, the legislation which impinged on lobbying was simply inadequate to deal with the threat posed by professional lobbyists. Por- tions of the Conflict of lnterest and Post-Employment Code for Public Office Holders make certain rules applicable to current and former civil seruants. (See Annex A, Consumer and Cor- porate Affairs, Lobbying and the Registration of Paid Lobbyists: a discussion paper for the rel-

À-7- - - - - Pross, Group Politics and Public Policy, 1986, 248. 48 Jeffrey Simpson, "How old pols turn a profit" in Globe and Mail, Report on Business, October, 1985,41-46. The figures reported by Simpson would need to be revised upward since they are over five years old. However, even at the $4,000.00 per month level, the point is made that professional lobbyists charge fees which make their seruices too dear for many interest Broups. 33

evant regulations.) As well, sections of the Criminal code (for example, those dealing with

bribery of public officials) can be applied to the lobbying issue. However, a number of prob-

lems with these statutes and rules made them inappropriate for the professional lobbying profession. The Report of the Cooper Commission, the Standíng Committee which investigated the possibility of registration noted this. lt stated that:

(i)n Canada, sections of the Criminal Code protect against serious abuses wherein those who would offer advantages to elected or other officials and those who accept them can be charged with criminal offences and are liable to be punished. This is the case with those who claim they can gain favours or have special influence with government officials, also. As well, the Standing Orders of the House of Commons, Beauchesne's Parliamentary Rules and Forms, and the Senate and the House of Commons Act all contain relevant instructions for federal Members of Parliament dealing with such matters as:

1. the disentitlement to vote upon any question in which a member has a pecuniary interest;

2. the prohibition of bribery;

3. the preservation of the independence of Parliament through the setting of rules of eligibility for Members of Parliament.

...Aside from the above which only obliquely touch on the practice of lobby-

ing there are no laws in Canada at the present time dealing with lobbyists per

49 se.

Lobbyists did not have to claim they had influence with Members of Parliament to attract clients who assumed that they had such influence. As well, they could be enticed to use these contacts if the reward was great enough.

Despite the attention that controlling these lobbyists generated among individual M.P.'s, nothing was passed through Parliament that would control these former politicos. All of the bills introduced to Parliament concerning this issue originated with backbenchers and most came from M.P.'s that were in opposition. However, promises from Brian Mulroney were

4e Minutes of Proceedings and Evidence of the Standing Committee on Elections, Privileges and Procedure Respecting: Lobbying and the registration of paid lobbyists, January 27, 1987, 2:5. '34 made in the 1984 election campaign concerning the removal of the spectre of corruption from policy-making and the public sector in general. This pre-election promise and a rash of scandals involving his government in the year following his electoral victory forced the government to introduce some kind of legislation that would inject a degree of legitimacy and respect back into the public sector. What followed did not help the credibility and integrity of the public sector. Lobbyists and improper lobbying were only one of the problems.

Numerous scandals plagued the early period of Mulroney's government. From Cabinet resignations to dubious public-private sector deals, scandal after scandal rocked the 1984-85

Conservative Covernment.50 As well, many Tories who were in the professional lobbying busí- ness outside the nation's capital followed Mulroney and his Conseruative Covernment to Otta- wa after the 1984 Federal election. These lobbyists established shop in Ottawa which now featured a more sympathetic Conservative government. Prominent lobbying fírms in Ottawa which featured high profile Liberals hired Tories and downplayed their Liberal connections following Mulroney's election victory in l9B4.s1 The damaged perception that the public had of politicians and their questionable ethical behaviour needed to be addressed and eliminated.

Due to this questionable ethical behaviour, the public was understandably skeptical of the equiÇ in the policy-making

The saga of Frank Moores, a close personal friend of Brian Mulroney, and the head of one of Ottawa's professional lobbying firms, is an ideal justification for this skepticism in the public mind. Briefly, Moores was rumoured to have solved the licensing problem of a Nova Scotian fisherman by selling guaranteed access to the Federal Minister of Fisheries (another friend) to this fisherman for $3,000. The fisherman, who was seeking a fishing license, was subsequently

50 Ferguson, "Business Ethics topple politicians" in láe Calgary Herald, Monday, February B, 1 988

51 See Sawatsky, The Insiders, Toronto: Mclelland and Stewart, 1987, 2-7 for a good account of the re-organization and current make-up of Ottawa's top professional lobbying firms. Also see Jeffrey Simpson, "ldentifying lobbyists," in The Clobe and Mail, Decem- ber 3'1, 1985, A5 concerning the move of many Conseruative lobbyists into Ottawa after the 1984 Federal election. 35 the happy recipient of the desired permit.s2 The public reaction was swift and uncomplimentary and forced the government to address the shrinking respect for governmental processes with action to curb such abuses. The Lobbyists Registration Act was a part of government's reaction.

2.4 SUMMARY

This whirlwind tour of the evolution of policy-making in Canada ís admittedly brief and countless issues were not raised which might othenruise have been included. This chapter has only demonstrated that the role played by interest Broups in the policy process had become crucial. Disillusionment with political parties existed because of their inability to represent interests (the sectoral-spatial tension). lndividual Members of Parliament and even Cabinet were considered illegitimate as more and more decision-making power seemed to be vested in the unelected and unrepresentative bureaucracy. This problem, combined with the secretive and seemingly unfair deals on which policy seemed to be based bred a change in Canadían society whích demanded more and more public participation in the policy-making process. Interest groups emerged and proliferated. Traditionally, the Canadian political culture had been referred to as quasi-participatory and Canadians were known for their deference to authoríty.

These traditions were in jeopardy.

Hand-in-hand with the proliferation of interest groups was the emergence of lobbyists, especially third-party professional lobbyists to assist these groups intervene in government relations. Covernment relations were becoming simultaneously more and more complex and more and more essential. lnformation about the complex policy process and the appearance of guaranteed access to the correct people within government were offered for sale by many lobbyists. The connection of many third-party lobbyists with politicíans and civil servants coupled with the secretive nature of their work led to the speculation that their influence with decision-makers and their representatives was being peddled. Alternatively, even if influence

52 Sawatsky, The Insiders, 1987,1-5. 36 was not being peddled, how could the public know who was influencing the making of public policy and the content of legislation. The identities of those parties who lobbied to attempt to influence public policy would have to be revealed. Their identities and activities could no longer remain a mystery. From here we can explore the drafting of a registry for paid lobbyists and analyze its likely effectiveness. This is the task of the remaining chapters. Chapter lll

THE COMING OF LEGISLATION

As the previous chapter demonstrated, policy-making had become a very complex process and lobbying had become essential if specific interests were to have their views considered when government was designing and implementing policy. Covernment further increased the importance of lobbying with íts need for the sound information and legitimacy which interest groups could supply. As well, interest Broups were valuable communication links between governments and citizens and could assist in the implementation and administration of certain legislative output, All this combined to invite the appearance of the paid lobbyist. A demand is recognized and in an entrepeneurial capitalist economy, someone will accommodate this by creating the supply. Cognizant of the important place that interest groups occupied in the policy-making process, the increasing importance of lobbyists and of the potential for abuse such a system created, individual Members of Parliament attempted to have legislation enacted to avoid the possibility of abuse. The proposals called for legislation which would control lobbyists by requiring them to register with government and disclose certain information. Among other things, appropriate legislation would ensure fairness in the task of gaining access to decision-makers and thereby ensure faírness in policy-making. Fairness in policy-making is a crucial ingredient in the democratic process. These Bills can be viewed as the fore-runners of the Lobbyists Registration Act and are listed in Appendix A.

These "fore-runners" were sponsored by backbenchers and usually did not even get past first reading in the House of Commons. However, in Vancouver in the fall of 1985, Prime

Minister Mulroney commítted his Covernment to introduce "tough" legislation which would, among other things, deal with the possibility of corruption within the ranks of professional

-37 - 38 lobbyists.53 Following this public commitment made in Vancouver, Mulroney announced to the House of Commons and the Senate that it was

...the undertaking of this Covernment to introduce into the House of Com- mons, at an early date, legislation to monitor lobbying activity and to control the lobbying process by providing a reliable and accurate source of information on the activities of lobbyists.-

The legislation introduced into the House of Commons by the Ministry of Consumer and

Corporate Affairs over a year later was intended to reassure a skeptícal Canadian public that policy was being made faírly and openly. Mulroney had said that

...(t)his initiative (the registration of paid lobbyists) should not be misinterpret- ed to mean that this Covernment is aware of particular improprieties in the conduct of lobbyists...(but) is simply sayin4.that something (lobbying) so important should not be shrouded in mystery."

Though Mulroney claimed to be unaware of any particular scandalous activity by professional lobbyists, a registration scheme would remove all doubt by allowing the public and politicians to scrutinize the policy-making process and determine who was influencing policy decisions, how they were doing this, and if the entire matter was above reproach. The progress of the legislation through Parlíament after Second Reading spanned just over five months while getting to Second Reading took nearly three years. The feeling was that Bill C-82 was passed so hurriedly because the government, not overly enthusiastic about any form of registration for lobbyists,s6 had made up its mind and just wanted to get the whole matter over with. The contents of Bill C-82 were not negotiable. Even the Legislative Committee hearings after Sec- ond Reading were very brief and not a single proposed amendment *as passed.sT

The commitment to somehow "monitor" the lobbying industry was only a part of a sweeping package which dealt with a wide variety of issues grouped under the umbrella of public sector ethics. The highlights of Mr. Mulroney's speech are captured in Lobbying and the registration of paid lobbyists: a discusion paper by Consumer and Corporate Affairs, 1985.

Canada, Consumer and Corporate Affairs, Lobbying and the Registration of Paid Lobb- yists: A discussion paper, 1985, 2-3.

Ib¡d, 3.

Sawatsky, The lnsiders, 1987, 11, 326-7. 39

Between Mulroney's initial commitment to lobbying legislation made in'1985 and the

introduction of Bill C-82 (An act respecting the registration of lobbyists) in June of 1987, the

Canadian public was treated with a Discussion Paper on lobby registration and a lengthy investigation of the issue by the Standing Committee on Elections, Privileges and Procedure. The

Discussion Paper was produced by Consumer and Corporate Affairs and subsequently referred to this Standing Committee. The Committee was chaired by Albert Cooper, the Conse¡vative

M.P. for Peace River, and was dubbed the Cooper Committ"".tt Thi, Committee issued a

Repoft which was to serve as the basis for Bill C-82.

3.1 THE COOPER COMMITTEE

Aside from Mr. Cooper, the Committee, which commenced work on the lobbying issue ín

April of 1986, included two other Conservative M.P.'s, a Liberal M.P. and a Member of the

NDP. The Liberal Party was represented by Don Boudria and the NDP was represented by.lohn

Rodriguez. The Conservatives, apart from Mr. Cooper, were represented by Fred King and

Lorne McCuish. They were strongly opposed to any kind of registration scheme while Boudria and Rodriguez were just as strong in their advocacy of registration with detailed reporting requirements. Cooper, himself, vascillated but desired to reach a concensus that would enable him to propose recommendations to the House which would be endorsed by all members of the Committee. He wanted to secure the support of all members and thereby all parties.

Messieurs King and McCuish favoured absolutely no manner of legislation. McCuish explained that "a registry would only make mankind more devious than he or she is now."5e

McCuish feared that a legislated register would simply make those who were lobbying improp-

House of Commons, Commons Debates,.luly 18, 1988, 17694-97.

lbid, March 8, 1988, 13494.

Sawatsky, The lnsiders, 1987,324. 40

erly work at discovering some way to avoid registering rvhile contínuing to lobby. Fred King

supported McCuish, adding that not only would registratíon drive lobbying underground, but

it "would produce a bureaucratic nightmare and interfere with the right of business to operate

freely."60 Both opposed the idea of introducing more government regulations on an already

over-regulated polity. McCuish and King echoed the objections and complaints of the Canadi-

an witnesses which appeared before the Committee. These included seven professional lobb-

yists, three associations, three politicians and one representative of a special interest grorp.u'

A Committee which was full of intense internal ideological division and more than a dozen

hostile witnesses and an alleged weakly committed government did not bode well for the

prospects of legislation. It did not appear as though Mr. Cooper would get his unanimous

Report.

The Discussion Paper put out by Consumer and Corporate Affairs in 1985 following Mul-

roney's commitment served as the basis for this Committee's deliberations.62 The Committee

adopted the notion that "democracy benefits and thrives when the public is informed"63 as the guiding principle which informed their deliberations. The Cooper Committee saw its choices on the lobbying issue as confined to one of four options:

1. Maintain the status quo (in other words recommend that nothing be done).

2. Require lobbyists to regulate themselves, with or without government interuention.

3. A registration scheme with either limited or detailed disclosure.

4. A combination of registration and self-regulation. (This is what the Committee

eventually chose.)

tbid, 325.

61 House of Common s, Minutes of Proceedings and Evidence of the Standing Committee on Elections, Privilege and Procedure, January 27, 1987, Appendix A.

Ibid, 2:3.

lbid,2:4. 41

Their decision was only made possible because of the compromise of both camps. King and

McCuish softened their opposition to registration while Boudria and Rodriguez became less adamant in their demands for a rigourous and comprehensive registration scheme. They knew that their demands concerning a system of registration would never gain the support of the

Committee's Conseruative members, That would mean no unanimous Report and without such a Repoft, the government would be able to let the whole registration issue die. Boudria and Rodriguez were unsure of the strength of the government's commítment to the idea of registration and therefore had an interest in compromising to accommodate King and

McCuish. They reasoned that some kind of legislation was better than the possibility of no legislation at all.6a They reassured themselves by claiming that they could always make their case in the Legislative Committee.

For their part, King and McCuish were swayed by the testimony they heard when the

Committee visited Washington and Sacramento, home to two registries operating in the Unit- ed States. The American witnesses who testified before the Cooper Committee were unani- mously and whole-heartedly in favour of registration. Many of these witnesses complained that the registries in the U.S. were actually too lenient and needed to be made tougher. More disclosure and a registration plan which would require more individuals to register as lobbyists was the common sentiment voiced by most of the American witnesses. The American witnesses explained that registration was beneficial since "it made them look professional and above board and prevented the suspicion that automatically accompanies ,".r".y.ut This principle would operate even if the lobbyists were not professional or above board and none of the witnesses mentioned the desirability of openness for the sake of enhancing democracy.

McCuish and King were impressed since many of these American witnesses were free-enter- prising Republícans with strong business connections. They were men after King and

Sawatsky, The lnsiders, 1987,334.

rbid,330-1. 42

McCuish's own hearts.66

When the Standing Committee commenced its hearings on April 14, 1986, it did not

seem very promising that there would ever be lobbyists' registration legislation. The divisions were deep and the opposítion was formidable. As well, the commitment by government was

questionable. However, after eight months of testimony from a variety of individuals, out-of-

country hearings in Washington, D.C. and Sacramento, California, hours of heated debate, bargaining and compromise, the Cooper Committee did manage to present a unanimous repoft to the House of Commons. The recommendations of the Cooper Committee are reproduced in Appendíx C. Basically, the Committee, which concluded that "in matters of public policy the public's right to know and be informed is paramount.6T suggested that the government introduce legislation which would implement the registration of lobbyists in conjunction with an association of lobbyists with a suitable ethical code governing members' behaviour and lobbying tactics. This code of conduct would be developed by Bovernment in consultation with the lobbying industry. The Committee recommended that Consumer and Corporate Affairs consult with them when the legislation was being drafted and that the whole issue of lobbying and registratíon be reviewed by the Standing Committee in two years.

The unanimous report obliged the Government to introduce legislation. Harvie Andre, who had replaced Michel Cote as Minister of Consumer and Corporate Affairs while the

Cooper Committee was investigating the issue of registration, was unequivocal. "Unanimous reports are few and far between in this institution and when we get one we want to act on it.

That is the intention of the government."68 Andre promised that his Ministry would draft appropriate legislation immediately and he would introduce it to the House in short order. The recommendation that the Cooper Committee be consulted when the legislation was being

tbid, 328.

67 House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Elections, Privilege and Procedure, January 27, 1987, 2:6.

Sawatsky, The Insiders, 1987,335. 43 drafted was ignored. Actually, it is very likely that the only thing which was resolved by the lengthy and difficult Committee hearings was whether or not the government should proceed with Iegislation.

The report did not add a single issue, or even nuance, to the substance of the registry debate. lt didn't need to; the bureaucrats at Consumer and Corporate Affairs, who would ultimately write the Bill, understood the various issues well, However, the report resolved the question of whether the government should prggeed with a registry and, in general terms, gave guidance on what to cov- er.

Despite the work and expense of the Committee which resulted in recommendations which were heralded as part of a fine report by skeptics who thought the Committee was just a device by which the government could avoid doing anything, it seems their efforts were mostly in vain.

Bill C-82 was the legislation promised by Andre. C-82, while touted as consistent with the spirit of the Cooper Committee's recommendations, differed in significant ways from what this

Committee had suggested. Some of the most significant differences seem to contradict the very spirit of the recommendations. Bill C-82 would separate lobbyists into two categories and require different information depending on the category of lobbyist one was. Another

Committee recommendation would have given the Assistant Deputy Registrar Ceneral, the

ADRC or the civil servant responsible for administering the Act, the authoriÇ to initiate investigation on the accuracy of registration information and the ability to commence legal prosecution if false information was discovered to have been filed.70

tbid, 334-5.

The Fírst Annual Report on the Lobbyists Registration Acú boasts of 100% compliance. This boast, while seemingly impressive, is rather hollow when one considers that there is virtually no way to establish non-compliance.

See Cornmons Debates, March 8, 'l9BB, 13494-503 March 14,1988,13680-85; July 15, 1988,17601-5 and July 25,1988, 17919-35. 44

Other omissions by the Act were pointed out by various M.P.'s71 and are briefly dis-

cussed in Chapters four and five. Even the Liberal and NDP Members who had participated in the all-Party report of the Cooper Committee, attacked Bill C-82 as inconsistent with their recommendations. These M.P,'s questioned the need for a Committee report given the weak nature of the proposed legislation.

Bill C-82, which eventually became the Lobbyists Registration Act not only dealt with third-party professional lobbying, but also contained provisions for all other lobbyists who received payment for theír work as lobbyists. However, the "free-lance" professional lobbyists o:'government consultants, many of whom were former bureaucrats and/or party workers and/ or personal friends of politicíans, were the primary targets of the registration ,.hu-".72 The often imperceptible difference between corrupt lobbying and legitimate lobbying is particularly germane here and will be explored and discussed in a later section of this chapter.

The drafters of the Lobbyists Registration Acú were faced with a simple question with profound and complex ramifications. How was open and honest policy-making to be ensured while stopping, or at least substantially reducing, the potential for abuse and perceived corruption which undermined the concepts of open policy-making? This question, one of the major dilemmas of the registration scheme for lobbyists, needed to be answered while considering another issue. Open and honest policy-making had to be ensured without erecting undue barriers to legítimate lobbying, so necessary for competent public policy. Apparently, Consumer and Corporate Affairs and its Minister would take little advice from the Cooper Committee.

These two objectives comprise the rationale of the Lobbyisis Regrstraúion Act. The task was one of achieving a balance between these goals since they could easily conflict with one another, Too much emphasis on restricting the dubious activities of professional lobbyists might hamper the efforts of legitimate lobbying. At the same time, however, if open and

72 See Hylton, "Lobbyists come under scrutiny in Bill C-82" in Marketing, vol. 93, no. 47, November 21, 1988 and Consumer and Corporate Affairs, Lobbying and the registration of paid lobbyists: a discussion paper, 1985,2. 45 unimpeded lobbying was promoted too vigorously, the restrictions placed on professional lobbyists would likely prove to be ineffective and virtually meaningless. This is why Michel

Cote, then Minister of Consumer and Corporate Affairs, stated that "(t)he implications of regu-

Iating the practice of lobbying should be thoroughly considered prior to finalizing proposals for legislation."T3 Perhaps a hint of where the "balance" would be found is revealed in a statement by the Registrar of Lobbyists division in an information booklet published to help explain the Act. "The Act does not regulate lobbying - it simply requires that lobbyists register so that the public can be aware of who they are and on whose behalf they are lobbying.Ta A mini- mum of information and very weak legislation was deemed to accomplish this. Lobbyists could use whatever methods they considered necessary to achieve their goals as long as they com- plied with the requirements of registration or did not get caught if they chose not to. The government conceded that there was nothing in the Lobbyists Registration Acú that would disal- low any lobbying practice to be used, but hoped that morality and integrity in lobbyists coupled with public scrutiny and the possibility of penalty would keep the lobbying industry on the 'straight and narrow.' Part of the reason cited for this absence of any required act¡ons, apart from registration was that much of those areas in which regulation was deemed necessary concerned matters that were within provincial jurisdíction and beyond the jurisdictional competence of the federal government.

73 Consumer and Corporate Affairs, Lobbying and the Registration of Paid Lobbyists: a discussion paper, 1985, Preface.

74 Consumer and Corporate Affairs, lnformation on The Lobbyists Registration Act and regu- Iations, 1989,2. 46

3.2 REGTSTERTNG THE IOBBYTST. SOME MAfOR TSSUES

Although Prime Minister Mulroney had stated that legislation regarding paid lobbyists should

be forthcoming "on an urgent basis," no legislation wa.s tabled for several years following this

commitment. The long delay was ascribed to the need for serious consideration of the issues,

but many speculate it was due to the intervention and opposition of professional lobbyists,

themselves.ts R"th", than the promised legislation, the government referred the entire issue

of a lobbyists' register to the Department of Consumer and Corporate Affairs for the publica-

tion of a Discussion Paper.

ln Canada, a small minority of professional lobbyists argued that official recognition by

government through an unoppressive Registration Act may inculcate a degree of respectability

into public opinion about lobbying. Liberal M.P. John Parry explained this as follows:

...in some cases...... (registration is) seen as a benefit in that there is no longer a need for the light of suspicion to be cast on them when the information is freely, publicly, and openly available as to who their clients are, what objectives they are seekigg, and who they are influencing or seeking to influence within Covernment."

This was the same argument advanced by many of the American lobbyísts who appeared before the Cooper Committee. For such advocates of registration, the problem was to get an

Act which would be seen as informing the public while lending respectability to these firms.

With a Registratíon Act, many lobbyists saw the lobbying profession as gaining the prestige and respectability of the law firm.77 As long as the Act was not overly demanding, i.e. non- regulatory, this might appease the public and benefit the lobbying industry.

Lobbying has a rather poor reputation in the public mind because of unscrupulous methods of lobbying which were used in the past. These methods often involved bribery, influence peddling and other corrupt practices. "Throughout the nineteenth century, lobbying for inter-

75 "Tories back down on lobbying law" in the Montreal Gazette, Dec. 20, 1985,81.

Commons Debates, March 14, 1988, 13682.

"Lobbyists aim for law-firm image, try to play down their political ties" in The Clobe and Mail, April'lB, 1988, p. 823. 47 est Broups inspired tales of corruption, bribery, and, especially as seen in today's perspective, monumental conflicts of interest."78 M"luurn comments that very few parents would like to have their chíldren turn out to be lobbyists,Ts

Canadian lobbyists were skeptical that a registration act would rid their profession of this poor image. Most felt that there was nothing significantly wrong in the lobbying industry and that registration was merely a forerunner of extensive government regulation. To pacify such anti-regulatory opponents, Consumer and Corporate Affairs and the Cooper Committee quickly pointed out that the Lobbyist Registration Actwas not regulatory and should not be.80 This assertion by the Cooper Committee was stated despite the provisíon that some of their recommendations (especially regarding the ban of contingency fees) was assumed to be regulatory by lobbyists and Consumer and Corporate Affairs.Bl

Aside from convincing registration opponents that the Act was not regulatory, perhaps one of the more difficult tasks which confronted the drafters of the Lobbyists Registration Act was to define exactly what a lobbyist was and what constituted lobbying, As well as vitally important to the final wordíng of Bill C-82, this question involved a dífficult theoretical and ethical dilemma: what was the difference between illegitimate and legitimate lobbying? This question was all the more pressing if one recalls that the initial goal of any lobbying legislation was to reduce or eliminate the possibility of illegitimate lobbying while not discouraging input to policy-making via "legitimate lobbying." lt thus became imperative to try and differentiate

Consumer and Corporate Affairs, Lobbying and the registration of paid lobbyists,1985, 6.

Malvern, The Persuaders, 1985,26.

Consumer and Corporate Affairs, lnformation on the Lobbyists Registration Act and The House of Commons, Minutes of Proceedings and Evidence of The Standing Committee on Elections, Privilege and Procedure, January 27, 1987, 2:16

81 Consumer and Corporate Affairs, Speech, Nofes for Remarks by the Honourable Harvie Andre, Minister of Consumer and Corporate Affairs Canada before the Legislative Com- mittee on Bill C-82, April 12,1988, 3-4. Also see Pross, "Light on Lobbyists" in Policy Options, December, 1987,4 for further discussion on the regulatory nature of Bill C-82. 4B

between legitimate and illegitimate lobbying. Even the Cooper Committee recognized the

existence of "good" or legitimate lobbying and the difficulties thís caused. lt was anxious not

to recommend legislation that cast such a wide net as would force all lobbyists to register.

This was not really the purpose of registration. Legitimate lobbying might be discouraged

while illegitimate lobbyists would only be more careful so as to avoid detection. While legiti-

mate lobbying is maintained to exist, it ís not a simple matter to define it in legíslation. The

Cooper Committee Report said that this "question seems to raise a simple definitional prob-

lem, but in reality the solution is quite complex."82

3.3 LEGITIMATE VS ¡LIECIT¡MATE TOBBYING

Attempting to differentiate what is considered "legitimate" Iobbying from that lobbying which

is considered improper and illegitimate is not an easy task. Still, it is important to make the attempt as one's definition of what constitutes lobbying and who would qualify as a lobbyist would be predicated on how legitimate lobbying is distinguished from illegitimate lobbying.

The government was pre-occupied with stopping illegitimate lobbying, or the perception of illegitimate lobbying, while not erecting unnecessary barriers to ordinary interests in their pur- suit of access to policy-makers. As we shall see, the difference between legitimate and illegitimate lobbying is not always obvious and may be next to impossible to make. Illegitimate lobbying, as Paul Malvern states,

often comes down to lobbying that the person using the term disagrees with, or some sort of grab at the public purse of which the speakeroor writer is not a beneficiary. lt is 'bad lobbying.' lt is what someone else does."'

82 Minutes of Proceedings and Evidence of the Standing Committee on Elections, Privilege and Procedure, January 27, 1987, 2:8.

Malvern, Persuaders, 1985, 24. 49 ln other words, what Malvern is suggesting is that distinguishing between illegitimate and legitimate lobbying may be completely subjective and may merely be the proverbial 'tilting at windmills.' However, despite this claim by Malvern, Bovernments have come to rely upon the input of ínterest Broups to make public policy. This input of interest groups is realized through lobbying. Lobbying without exerting undue influence (i.e. the use of lobbying techniques which do not involve illegal practices, explicit or implicit threats or promises, the improper use of acquaintances or friendships, etc.) is considered proper. This is referred to as legitmate lobbying. Ceorge Post considers illegitimate lobbying to be those efforts to influence government decision-makers

when the influence exercised appears to be based on partisan connections, nepotism, personal fríendships or the greediness of individuals. The appropriate criteria for government decisions shoul$,be the quality of the person, the product or the competitiveness of its price,o"

Legitimate lobbying, however one defines this term, let alone whether or not one agrees with its existence, is that public input into policy-making which the Covernment was anxious not to impair with a lobbyists registration system. Presumably, illegitimate lobbying would be lobbying using bribery, undue influence over policy-makers, implied or explicit threats or promises, and other such unethical or illegal behaviour to influence the progress of government action. Blatantly corrupt practices, such as bribing a policy-maker, clearly fall into the category of illegitimate lobbying and are not as common in Canadian policy-making as they once

*"r".tu However, other lobbying efforts, like alleged influence peddling and undue influence with which many professional lobbyists are accused, are not always "black and white" issues.

They are less easily categorized as legitimate or illegitimate.

84 Post, "Ethics and lobbying: a government perspective," in Canadian Public Administra- tlon, Spring , 1991, 86. 8s While it is not the intention of this paper to provide a history of instances of bribery in Canada's history, an interesting account of some of the more exceptional instances can be found in Cibbons and Rowat, eds., Political Corruption in Canada; Cases, Causes, and Cures, (Toronto: McClelland and Stewart Ltd., 1976) and Malvern, Persuaders, 1985, chapters 1 and 2. 50

For example, a professional lobbyist is retained by an interest group to lobby government in support of a particular policy or piece of legislation. By virtue of the prior connections of thís lobbyist which were made when the lobbyist was employed as a public official or prominent party worker, this professional lobbyist possesses certain useful information, He or she knows: 1) who is the right person to contact, and when, and 2) what kind of posítion to take, vis-a-vis the relevant policy or legislation under consideration, which is most likely to successfully influence this particular policy-maker. As has been clearly displayed in the Chapter 2, this knowledge is essential to a successful lobbying campaign. lt is most useful in the pre-Parlia- mentary stage (see Figure 2.4).

Also, again due to the extensive contacts, accompanying influence, and information gained while a public employee or faithful party worker, our hypothetical professional lobbyist is virtually guaranteed access to see the 'right' person. Only a limited number of lobbyists can be accommodated by any one policy-maker, and some representations will, therefore, not be made. lt may not be deliberate on the part of the policy-maker, but it is nonetheless a reality.

Without proper access to the appropriate people, even the best prepared cases are merely exercises in futilíty. As Thorburn has noted, access alone will not guarantee the successful conclusion of a lobbying campaign. Covernments need accurate and consistent expert information from interest groups and they must also, by virtue of their alleged representativeness, be able to supply government decisions with legitim"cy.86 Nonetheless, access is essential to successful lobbying. ls the use of knowledge or contacts gained while working in a public position a case of undue influence or improper lobbying?

ln many cases, the professional lobbyist will only provide the client (the group or individual for whom the lobbyist works) with the knowledge of whom to see, when, and what to say.

The appointment to see this policy-maker, often a senior civil servant in a government Minis- try, or the Minister, is arranged, but the actual presentation is made by the group or individual.

86 Thorburn, Interest Groups in the Canadian Federal System,1985, 6. 51

The professional lobbyist does not participate in the verbal exchange between the interest group representative and the decision-maker. This preliminary work is the practice of some professional lobbyists, Should lobbying activity be defined in such a way that those providing such seruices be required to register?

Susan Murray, the president of a high-profile professional lobbying organization, claims that this is most often the procedure followed in her .o-p"ny.tt Sensitive to criticisms of undue influence --- influence peddling --- levelled at professional lobbyists accused of using their extensive political contacts to negotiate successful lobbying campaigns, many professional lobbyists feel that only supplying their clients with the relevant information and scheduling the appropriate meetings will allow them to avoid charges of influence peddling and even excuse them from being classifíed as lobbyists and required to register pursuant to the Lobb-

yists Registraiion Act.88

Does either scenario, conducting meetings with "friendly" policy-makers or merely scheduling these meetings, constitute illegitimate lobbying? Does the entire issue revolve around what Malvern notes, that the justifiable use of the pejorative term of influence peddling depends on the stand one takes on the issue which is the subject of the lobbying, or whether or not one is a beneficiary of such lobbying? ls the proprieÇ of lobbying, once it is recognized as legitimate, merely subjectíve, just another ethical dilemma facing our society? Or can we set an objective limit and say that lobbying becomes illegitimate when certain limits are exceeded? Undoubtedly, there are certain lobbying techniques which almost everyone would judge as improper. However, if lobbying and decision-making remain a private matter, this judgement would be practically impossible to make.

Flanders, "Hamilton's straight-shooter" in The Hamilton Spectator, February 9, 1988.

Minutes of Proceedings and Evidence of the Standing Committee on Elections, Privilege and Procedure, lanuary 27, 1987, 2:14. 52

One method of determining the possibility of illegitimate lobbying by paid lobbyists is to attempt to calculate the success ratio of the efforts of professional lobbyists and compare their results with those lobbies in whích paid lobbyists were not ínvolved. Of course, this exercise would not prove the existence of improper lobbying, but if the success rate of paid lobbyists was significantly higher than unpaid lobbyists, it would suggest that something is operating which advantages the paid lobbyist. However, while it may be possible to somehow calculate the success ratio of paid lobbyists, this endeavour is not quite as simple as it may ,"urn.B9

Firstly, lobbyists do not always work for or against a specific piece of legislatíon. lnstead, the over-all policy direction and general attitude of the government may be the target of the lobbying. ln general, the success or failure of a lobbying campaign where no legislative output is involved is difficult to ascertain. Even when--there is legislative output, it is not entirely accurate to gauge success or failure as simply the passage of beneficial legislation or the defeat of detrí- mental legislation. To do so is a místake as many lobbies are launched in full awareness that the campaign will not result in the passage or defeat of any particular legislation. Some lobbies may only desire to affect certain amendments to legislation to "water-down" its impact, while the legislation, itself, which may be considered contrary to the general platform of the lobby, is allowed to pass relatively easily. lf the amendments are incorporated, but the legislation passes, can it be said that the lobbying campaign failed? The naive and uninformed public may consider this to be the case, but those "in the know" will maintain otherwise.

According to Paul Pross, issue-oriented interest groups are especially prone to evaluate the success or failure of their lobbying efforts in such simple terms as passage or defeat of legislation. Table 3.1 identifies four types of interest groups and the major characteristics of these

Broups. The objectives of issue-oriented pressure groups' lobbying pre-disposes such groups to evaluate their lobbying efforts in this simplistic manner. One of the major characteristics of issue-oriented interest groups is that these groups "are quite informal and are likely to be

89 Stanbury, Business-Covernment Relations, (Toronto: Methuen, 1986), 323-325. 53

TABLE 3.1

Classification of Interest Croups

CATECORfES CROI P CHÅR^CTErusÎCS

O¡Eaa¡lnônoí F.ê,út., mùkrplc mulrrplc. 5rull ¡rr,¡nc6 Þr b@dly lìñ:lr $rù oúcr I closly dcfid & i SrtuÞ,ebff !ffill I

;rcfcsrorols ;

, I|'l ,ìi

ì;.¡ 1'-'

LE\'=LJ OF CO\J\IL \¡C \ï¡ON B,ITH COvERN\I E\I

rcSur¡r

Source: Pross,Group Politics and Public Policy,1986, 120-121. 54 around only as long as their cause is."90 Many environmental lobbies can be classified as issue-orient"d.91 while Table 3.1 lists the ideal forms of pressure groups and allows a clear difference betrveen Broups to be emphasized, it should be remembered that most pressure groups do not fit neatly into any one category. Most possess features of two or more of the idealized categorìes to greater or lesser extents. One might well view this classification scheme as more of a continuum with actual interest groups lying somewhere between the extremes of institutional and issue-oriented groups. Every group possesses ceftain general characteristics

lnstitu- Mature Fledgling lssue- tionalized Oriented

Figure 3.1: A continuum of interest group classification

rnhich make it more Iike one of the idealized types than another (see figure 3.1).

9o Malvern, Persuaders, 1985, 26.

While not all environmental groups are issue-oriented, just as all issue-oriented groups do not focus on envíronmental issues, in general, environmental groups offer a good example of what is meant by transient, issue-oriented pressure groups. The Canadian Coalition on Acid Rain ís an ideal example of such a group. The Canadian Coalition on Acid Rain (CCAR) had only one objective: the passage of legislation which would effect the cessa- tion, or signifícant reduction of the extensive emissions from Canadian and American industry which was deemed responsible for much of the acid rain pollution destroying lakes and vegetation across these countries. When the Canadian and Amerícan governments passed Clean Air legislation which promised significant reductions in acid rain-causing emíssions, the objective of the CCAR rvas considered fulfilled and the organization disbanded. Creenpeace lnternational could be cited as an example of an environmental group which would not conform to the classification of an issue-oriented Broup due to the breadth of issues and the longevity of the organization. 55

It is quite clear that determining the success or failure of any lobbying campaign is not as simple as one might at first think, This is especially true for interest groups which are located on the institutional end of the classification continuum. The maxim "live to fight (lobby) another day" is appropriate. Pocklington describes this strategy as "a willingness to compromise to stay in the race."92 Many institutional groups, because of their longevity and diverse objectives, would rather concede the battle over a particular piece of legislation and remain in the competition to influence subsequent policy than employ intense and often confrontational lobbying techniques. Such lobbying techniques may satisfy short-term objectives, but alienate influential policy-makers. ln the final analysis, confrontationat lobbying can be counter-productive as the alienated policy-makers are unlikely to be well disposed in future dealings with groups that use such lobbying techniques. This lesson is certainly noted by professional lobbyists and its importance is not lost on them.

Pross's (1975) study of Canadian pressure groups has led us to conclude that , with the exception of a brief period in the 1960's and 1970's, issue-oriented groups have tended to have had little success in Canadian politics. lnstead, they tend to either develop institutional characteristics and thus take,a place around the circle of groups afforded access, or to fall by the wayside."

Issue-oriented groups would, therefore, seem to benefit the most by employing the assistance of professional lobbyists. However, these groups may be dissuaded from using third-par-

Ç lobbyists, not simply because of the hefty fees charged by professionals, but because they are unable or unwilling to meet the requirements of registration. This inability or unwillingness need not be intentional. lf the expense of registration'o i, perceived as prohibitive or unnecessary, third-party lobbyists may be avoided. The individualistic political culture in Canada may

Pocklington, ed., Liberal Democracy in Canada and the United Stafes, 1985, 369.

tbid, 369.

As the Lobbyists Registration Acf does not charge a fee for registration, this obviously does not refer to fees. What is meant are the expenses incurred in supporting the administration of providing the registration information or even less tangible and non-economíc expenses such as prestige, status, safety, etc. Requiring groups which are lobbying for or against a particular policy or piece of legislation to reveal their identities may make some groups reluctant to lobby, particularly if the policy does not happen to be popular. 56

result in the decision not to use professional lobbying services (excessive government involve-

ment). The desire to preserve anonymity may also play a role in the choice not to employ professional paid lobbyists. The Cooper Committee was aware that issue-oriented groups might withdraw from lobbying altogether if they were required to register or be listed as a clíent by paid third-party lobbyists. The Committee recommended that íssue-oriented groups be generally exempted from registration unless they employed a lobbyist who was primarily engaged in lobbying activities defined as such by the Act.es lssue-oriented groups seldom have the resources to hire lobbyists and though they would be listed in the register if they did, could avoid being listed in the registry if they chose to decline the valuable assistance which would be derived from a professional lobbyist.

It can be unwise and even unhealthy to support certain issues in some communities. How many supporters of cutbacks in fishing licences would be willing to go public (via registration) in Peggy's Cove, Nova Scotia? lf supporters of pollution control devices for smelters in Flin

Flon were required to register as supporters of a measure that would land thousands of employees in the community jobless, might it not be logical to assume any would-be supporters of such a policy would withhold their support? What about those concerned with clear- cutting of forests in Po¡t Alberni, British Columbia? Any people that lived in these communities and supported any of these devastating proposals would be subject to sanctions rangíng from ostracism to verbal abuse and ridicule to physical violence. It would seem likely that they would remain aloof.

Success or failure is often difficult to measure and when one moves to the hypothetical realm of policy outcomes which may have resulted without the involvement or intervention of professional lobbyists, this difficulty is compounded. One finds oneself in the land of pure conjecture --- unscientific speculation incapable of substantiation. lt can only be deduced that interests obviously value the work of professíonal lobbyists or these professionals would not

95 Minutes of the Proceedings and Evidence of the Standing Committee on Elections, Privi- lege and Procedure, January 27,1987,2:13. 57 be in such great demand.96

Prime Minister Mulroney's address to Parliament, made in September of 1985, on the lobbyists' registration scheme, was short on details. The Prime Minister was announcing only the firm intention of some manner of registration scheme for paid lobbyists. The detaíls were to be developed by the Department of Consumer and Corporate Affairs and the Standing

Committee on Elections, Privilege and Procedure. However, Mulroney did note that the primary target of any lobbyists registration scheme would be third party, paid and professional lobbyists who might be perceived as influence peddlers cashing in on the close affiliations they enjoyed with important persons in the public sector.

Most Canadians would regard lobbying where influence peddling was employed as improper, illegitimate, and perhaps even illegal. All that has to be done is sort out what constitutes influence peddling and differentiate this from normal interaction with one's acquaintances, who just happen to be important shapers of public polícy. However, this "simple" exercise misses the point of why professional lobbyists are so important.

Many paid lobbyists possess special information about the policy process. When one combines the possession of this valuable information with the all but guaranteed access to the right people which professional lobbyists have, a truly awesome potential to influence public policy exists. Since these professional lobbyists sell their expertise to those interests willing and able to pay, it would seem this scenario would constitute illegitimate, or at least unfair, lobbying. Such lobbying would compromise both the open government and even access principles espoused as the raison d'etre for the Lobbyists Registration Act. Having friends in the right places does not guarantee successful lobbying as was once the case, but it does not hurt.97

% A short but informative artícle on the "explosion" of professional lobbying firms since the 1970's was written by Ken MacQueen, "The Power Brokers - Lobbying in Ottawa" in Fox and White, eds., Politics Canada, 6th ed., (Toronto: McCraw-Hill Ryerson, 1977), 331 -335. 58

Undoubtedly, some action was necessary to remedy the potential for abuse, and the

actual abuse which existed, that professional lobbyists could and did propagate in the policy-

making arena. The issue is whether or not The Lobbyists Registration Act was this action.

Would the Act succeed in addressing the issue of real or potential abuse by professional lobb-

yists? Civen the enormous difficult questions involved in defining legitimate versus illegitimate

lobbying, could it?

3.3.1 Who plays the professional lobbying game?

The Cooper Commíttee Report said that attempting to distinguish between legitimate and

illegitimate lobbying is virtually impossible "without reference to those engaged in the (lobby-

ing) activity as well."98 ln contrast, Ceorge Post, a federal economic development coordinator for Ontario, claims that "the dilemma emerges in what is done, not who does it."99 These apparently contradictory views are not as incompatible as might seem. They can be reconciled by considering that certain lobbyist are better situated to use illegitimate lobbying techniques than others. This is not to deny that any lobbyist, paid or not, could engage in what would be condemned as improper or illegitimate lobbying practices. However, as paid third party or professional lobbyists were considered to be the primary target of registration, this sect¡on considers why the identification of these individuals w¿rs so important. The reader will then be better able to judge how effectively the provisions of the Lobbyists Registration Act will be able to control the inferred lobbying practices of such individuals.l00

Mary Ann Smythe, "Once a year meetings, limited access and cronyism are no longer enough," in lhe Clobe and Mail, Monday, June 5, 1989,827,

Minutes of Proceedings and Evidence of the Standing Committee on Elections, Privilege and ProcedLtre, 2:8.

Post, "Ethics and lobbyíng: A Bovernment perspective" in Canadian Public Administra- tion, vol. 34, no.1 , 84.

This should not be construed as an attack on this Broup of individuals. lt is only meant to highlight the abilities of professionals to influence government and why the govern- 59

The former polítical role played by many professional lobbyists is both an asset and a

Iiability. Their extensive political affiliations would provide them with useful information about government operations and acquaint them with individuals in the policy-making process. Both would assist them in gainíng the appropriate access to the policy-making process. At the same time, their former political activities would enhance their ability to attract potential clients. The degree and depth of former political activities might cause those interests who were in the market for a "good" lobbyist to seek out a professional with illustrious former activities and extensive contacts. However, these affiliations could also prove detrimental as they would contribute to the public suspicion and hostility that much of public policy is made on the basis of private deals negotiated between private interests and their lobbyists and government. lt is only understandable that the host of lobbyists who call themselves Consultants would be former politicos. An individual with only limited understanding of government process and who had little or no contacts within the process would hardly be an asset in the game of attempting to influence public policy. Perhaps it is unrealistic to expect that professional lobbyists would not emerge.

The manner in which the Canadian polity manufactures public policy brought about an increase in pressure Broup politics and pluralism created a further incentive for the proliferation of politically active interest groups. As well, the increasing jurisdiction of government made interests aware of the importance and potential benefits of interuention in the policy process. With the interest of themselves, and their constituents "on the line," it was, or should have been obvious that the leaders of these groups would employ virtually any strategy, individual or professional lobbying firm that would advantage their activiÇ in the policy influencing game. Professional lobbyists, or more fashionably, government consultants would happily oblige.

ment was so concerned with the possible use of inappropriate lobbying by these indí- viduals. 60

Though professíonal lobbying, even of federal officials, is by no means confined to Otta-

wa, the bulk of this lobbying is done in the capital city. There are over 60 separate Covern-

ment Consultants listed for the immediate Ottawa area. This represents a tremendous increase.

Only 10 years ago, there were less than l0 such professional fírms listed. An over 600 per cent

increase in a decade makes professional lobbying Ottawa's fastest growing industry. A brief

examinatíon of these companies serues to emphasize the doubt about the legitimacy of the

claim that these lobbyists make that they are not influence-peddlers and that they refuse to

"cash in" on politícal friendships. The extensive ties with politics and politicians illustrated in

Appendix D are not reassuring, especially within the secretive nature of making policy.

A further word is of interest and should be mentioned. Of the over 60 professional con-

sulting firms listed in the 1991 Ottawa and area telephone exchange, half were contacted in the hope that they would be willíng to provide some information about their firm and a few facts about theír most distinguished employees. The informatíon required was not burdensome and could likely have been compiled and communicated ín a half-hour's work. Though this information was available elsewhere, the provision of the same by these consulting firms would have been more reliable and time-saving than the research undertaken independently which resulted in the same data. However only two of these firms chose to respond. One of these responses w¿rs a simple two line letter stating that the firm would not comply with the request for information. The other was a brief telephone conversation with a promise of a detailed letter with the requested information to follow; the letter was never sent. The desire of this company to dispel the negative image of lobbying which was stated repeatedly in the brief phone conversation would appear to be more rhetorical than sincere.

Any discussion of professional lobbyists in Ottawa should commence with the two individuals credited with founding the professional lobbying industry in Canada. Bill Neville and

Bill Lee founded the first consulting company back in the 1960s and named it Lee-Neville

Executive Consultants Ltd. which was eventually shortened to Executive Consultants Ltd. or 61

ECL. Though Bill Neville is no longer with the firm, and it has significantly expanded from the two-man operation begun in the sixties, ECL still is one of the big name Consulting firms in

Ottawa.

Among Lee's many accomplishments, he greatly assisted Pierre Trudeau in his efforts to become Prime Minister in 1968 and also paved the way for the former Liberal leader, John

Turner to both leader and Prime Minister. Lee also headed the attempt by Paul Hellyer in his bid for the leadership of the Liberal Party in 1968. When this was won by Trudeau, Lee dutiful- ly aided Trudeau's successful campaign to become the P.M. A former Trudeau Cabinet Minis- ter, Judy Lamarsh, referred to Lee as "the best of any of the backroom boy5."101 Currently,

Lee maintains a directorship in the prestigious ECL.

Lee's partner in the founding of ECL was Bill Neville. Neville served as Executive Assistants to both Judy Lamarsh and Edgar Benson, Cabinet Ministers under Pierre Trudeau. lt is difficult to assign some of these professional lobbyists with a partisan label. Both Lee and Neville worked with the Trudeau governments, but both also laboured in the Conservative administra- tions, first under Joe Clark and then under the current Prime Minister, Brian Mulroney. Neville ran the PMO under Clark and smoothed the way into office following Mulroney's 1984 election victory. Neville also was a former political reporter for UPI in the 1950s. Currently, he runs his own lobbying firm, William Neville and Associates, after briefly serving another of

Ottawa's prominent Covernment Consulting firms, PAl.

PAI or Public Affairs lnternational, is wholly owned and operated by PARC (Public Affairs

Resource Croup) which also owns several other Consulting firms, both in Canada and abroad.

David MacNaughton heads PARC and is well known as the one-time brilliant EA for Don Jamie- son, Trudeau's Minister of External Affairs. MacNaughton, unlike Lee and Neville, would be easily identífied as a pañisan Liberal and has worked extensively with various Liberal candidates in the past 30 years. Prior to PARC, MacNaughton had attempted to join forces with Lee and

1oi Sawatsky, The lnsiders, 1987, 14. 62

Neville at ECL, but eventually founded the fore-runner to PAl, KinMac Consultants.

Susan Murray also qualifies as one of the big players on the Ottawa lobbying scene. Mur- ray has extensive contacts with the Ontario Conservative Party where she serued as vice-president for a number of years. She began a lobbying firm in Toronto but joined with Bob Fife to form Murray & Fife Consulting in Ottawa soon after the Conse¡vative's election victory in

1984.

Frank Moores also must be mentioned as one of the major Consultants in the nation's capital. Moores has been blamed as the individual responsible for the issue of registering lobbyists because of his suspicious and flamboyant style of flaunting his political ties. Bill C-82, the

Parliamentary fore-runner to the Lobbyists Registration Act, was referred to as the Frank

Moores Bill. Moores is thought to have used his personal friendship with various members of the government to secure a beneficial decision for a client. Moores is a close friend of Prime

Minister Mulroney and even attended the christening of Mulroney's children. He hosted fishing trips for numerous well-known politicians, including John Crosbíe, Joe Clark, Jean Chretien, and Mulroney. Moores served as a Conseruative M.P. for a time but is best remembered as the one-time premier of Newfoundland following loey Smallwood. Moores, like Murray and scores of other Conservatives, set up shop in Ottawa almost immediately following the election of

Brian Mulroney. They established Bovernment consulting businesses, which, among other things, were highly profitable.

Those individuals who are active in the professional lobbying business, understandably, were usually extensively involved in politics prior to becoming Covernment Consultants.

Appendix D lists several dozen of these individuals and describes their former ties with politics. To say the least, this list of the former activities of a sample of professional lobbyists undermines the position that these lobbyists are not peddling influence. The Lobbyists Regis- tration.Acf, which is described in the next chapter, w¿rs to make the former activities and 63

extensive connections of these lobbyists irrelevant to the outcome of a lobbying effort. How-

ever, it is doubtful that any legislation could achieve such a task. Post argues that what is

required of lobbyists which have such impressive connections is integrity, something which

cannot be achieved through legislation.l02

Aside from displaying the former ties with politícs that these lobbyists have, Appendix D also reveals two other interesting items. Firstly, not all of these seasoned lobbyists would be classified as Tier I lobbyists, an issue to be remembered for the next chapter. Many would be categorized as Tier ll lobbyists or simply not reguired to register at all. Secondly, there is a good deal of "swapping" that goes on among professional lobbying firms, among themselves and with government. Several professionals who were once gainfully employed by an Ottawa lobbying firm were spirited away into a Bovernment department at the request of a Minister,

Harry Near and Elizabeth Roscoe are the h¡¡o most pronounced examples of this. They both were employed by PAI but were "loaned" to Energy Minister, Pat Carney following Mulroney's electoral victory in 1984. PAI fully expected both to return after a stint with Energy but Near felt he could do better outside of PAI and founded his own firm. Roscoe is currently employed with the Ministry of State for Finance. Both were compensated with salaries well above what Treasury Board limits senior civil servants in recognition of the sacrifíce that they were making to serue the public.lo'Thuy could make far more as professional lobbyists than they would with government. And concerning the recruitment of lobbyists from the ranks of government, NDP M.P. John Rodriguez comments on the "ease with which individuals move from the Covernment benches to the lobbyists' benches."104

''--t*lEthics and lobbying: a government perspective" in CPA, vol. 34, no. '¡, 88-9. 103 Sawatsky, The Insiders, 1987,279-280. 104 Commons Debates, March B, 1988, 13501. 64

The secretive nature of lobbying combined with the "swapping" that goes on between lobbying firms and government lends credence to public suspícion of lobbyists and government decisions, The large amounts of money circulated within lobbying firms also fuel public skepticism. As Bill Neville once said, it is time to get out of politics and make some mon-

The gross billings of the major lobbying firms in Ottawa are in the millions of dollars. "y.tou The monetary incentive for ex-politicos to get into the lobbying business is irrestible.

Trying to differentiate illegitimate lobbying from legitimate lobbying was difficult to begin with and the former activities and connections of many paid lobbyists only compounded the problem, Nonetheless, government relies on interest group input for accurate and reliable expert ínformation and the provision of legitimacy to decisions. Lobbying has thus become increasingly important and there is a form of lobbying which is considered proper and legitimate. At the same time, the complexity of the policy process and the high stakes of getting one's views through to decision-makers set the stage for the arrival of lobbyists who would take whatever measures they considered to be necessary for success. The benefits of successful lobbying could be quite substantial. lllegitimate and improper methods to lobby were just one more weapon in the arsenal of the lobbyist. Crateful interest groups would pay very well to have their concerns properly considered when government was formulating policy. A lobbyists registration act would have to recognize this problem and try to prevent its occurence or at least discourage the practices which this predicament encouraged. This was one of the key problems with which drafters of a registry would have to deal. There were also other problems and issues which needed to be addressed.

105 Sawatsky, The Insiders, 1987, 33-37. 65

3.4 OTHER ISSUES ln examining all issues which gave Bovernment drafters of the Lobbyists Registration Act no end of trouble, it is important to keep in mind what the purpose of a registration scheme was.

A public registry of lobbyists would provide the public with the comfort derived from knowing who was influencing public policy. At the same time, public office holders would presumably know who was behind the lobbying campaign of which they were the target. Also, any registry must not demand so much information that it would hinder access to policy-makers from those interests which deserved to be heard (remember, it was pronounced that lobbying was a legitimate activity).

The first hurdle to be overcome by drafters was whether to formulate legislation (either regulatory or not) or to opt for something like general dìrectíves and self-regulation. Presum- ably, this would be very broad recommendations by government that professional lobbyists conduct their affairs in such and such a way and then allow these lobbyists to police themselves, similiar to the manner in which the Canadian Bar Association regulates its attorney members or the Canadian Medical Association controls the doctors which belong to it. This was preferred to registration by many of the Canadian witnesses who appeared before the

Cooper Commission.

Such a system of self-regulation, which operates in Creat Britain, was strongly advocated by professional lobbyists such as Susan Murray. The Department of Consumer and Corporate

Affairs considered such a scheme but concluded that it was not suitable for the Canadian polity.106 Th" Cooper Committee, although understanding of the attractiveness of a system of self-regulation, spelled the ultimate demise of this idea for all intents and purposes. lts Report claimed that it remained unconvinced that self-regulation alone would correct the possibílity of illegitimate and improper lobbying by some lobbyists. Self-regulation may very well fulfill the promise of not impairing access to policy-makers and require no cumbersome administration

1oô Consumer and Corporate Affairs, Lobbying and the Registration of Paid Lobbyists: a discussion papeL 1985, 7. 66

by government, but it would likely fail to provide for transparency in the policy-making pro-

107 cess.

What method of dealing with the problem of making the policy process transparent was

the first major difficulty which confronted the Cooper Committee, However, this difficulty was

overcome rather quickly as the Report saw registration as the only viable method of ensuring

that the objective of transparency would be realised. The next issue which needed to be

addressed was even more diffícult. Who should be included as a lobbyist subject to registration needed to be decided. lnitially, this issue was limited to whether unpaid lobbyists should

be required to register. Although most commentators agreed with Post that the process is more important than who the players are, both the drafters of Bill C-92 and the Cooper Com- mission decided that registration should only be required of paid lobbyists for the present.

"The chilling effect that registration may have on volunteer lobbying" persuaded the government to exempt unpaid lobbyists even though it was realised that "this decision eliminates a large portion of the lobbying population from the requirement of registration" but the Com- mittee felt "justified in making this determination as this time.108

Following the determination of whether or not to límit registration to paid lobbyists, there were then several other issues which would determine who would be subject to registration.

These all revolved around the ideas of transparency, accessibility and administrative simplícity.

One of the more important items of concern regarding whom to include was the issue of collecting and selling information important to lobbying efforts. Others include influencing through mass mailings and possible infringement on Charter rights such as freedom of expression and association and the right to privacy.

107 Minutes of Proceedings and Evidence of the Standing Committee on Elections, Privilege and Procedure, 2:7.

108 lbid,2:13. 67

3.4.1 The Sale of lnformation

A frequent complaint of groups whích are usually not very successful in getting the ear of gov-

ernment, i.e. the unsuccessful lobbyists, is that they do not have access to the ínformation which would allow them to achieve their objectives. This is particularly true of groups without the resource base which would enable them to secure the necessary information.l09

Commentators on group politics in Canada are quick to note the importance of access to the correct information. Paul Pross claims that correct, accurate and complete information is

"doubly valuable in group relations with government: not only (does it) assure the group of a place in the policy process, but the discreet manipulation of data can be used to shape the thinking of policy-makers. -

Underscoring this point, Pross states that "even affluent and established groups cannot make an impression on policy if they are denied access to the flow of information...lll Information is essential to all interest groups regardless of their status. lt must also be remembered that information is one of the commodities for which governments value interest groups. There- fore, if Broups do not have access to good information, their access to government officials is also jeopardized. The problem is that Broups with abundant resources have a much greater opportunity to acquire this ínformation.

lnformation often consumes a good deal of time and effort to collect. Larry Smith notes the truth of this with reference to the story of one civil seruant.

One civil servant conducting a background study on a ceftain industry needed information that, although in the public domain, required laborious collectíon. Realising that these data would have been collected by the industry's trade association, he called, explained his purpose and requested the information. He was refused, abruptly. And what did this refusal accomplish? Because the information in question was s!i.ll, obtainable for the report, the only result was one very irritated civil seruant. "'

109 The Canadian Council on Social Development, /ssues for Citizen lnformation Services, Ottawa, 1984,75.

'110 Pross, Croup Politics and Public Policy,1986, 186.

111 tbid,270. 6B

The cívil seruant obtained the information on his own, with considerable effort, and wrote the report. When next the obstinate industry association was involved in negotiations with government, thís uncooperative nature would be remembered.

This story serves to highlight the value and importance of having information. More important yet is the manner with which this information is managed. Cood management

(unlike the above story) will greatly benefit future lobbying while poor management of one's information can be very disadvantageous. The point is that if a group does not have this information to begin with, it certainly will not be disadvantaged by how it uses it, nor will it receive the advantages that accrue from proper management.

Obviously, the possession or availability of information is significant to any lobbying effort, to any interest Broup. And just as obviously, it is often only with great effort that accurate information is amassed. Apart from their former activities, professional lobbyists, merely by reason of the fact that they are located in Ottawa, have superior contacts with government.

They pursue the status of policy on a full time basis, have the r.esources to do all of this, possess and/or are able to obtain the necessary information. The sale of this information which they either possess or can obtain is an issue which had to be consídered when contemplating what constitutes lobbyíng and which lobbyists would be required to register under a lobbyists registratíon act. As the Cooper Committee asked, "Are companies who are involved in the gathering of information and preparing clients to meet with government officials engaged in lobbying?"1t3 Ar" such individuals helping to shape or influence policy?

Neither is this access to information limited to professionals, but other lobbyists may have access to it, as well. Clearly, the availability of the correct information is directly attributable to the amount of time and resources which a group or individual is able to devote to this

"--t*t "Cetting Your Way With a Bureaucrat," in Canadìan Eusiness, September, 1980, 104.

113 Minutes of Proceedings and Evidence of the Standing Committee on Elections, Privileg- es and Procedure, January 27,1991,2:9. 69

endeavour. This requirement severely handicaps those groups which are unable to either

acquire this information on their own or are unable to purchase it from professional lobbyists.

Many professional lobbying firms are very aware of the centrality of information to successful

lobbying. Many of these lobbying firms are adamantly opposed to registration because they

claim not to lobby, they only organize the case for their client and then send the client out to

do his or her own lobbying. This lobbying technique is used by such professional lobbyists as

Bill Fox of FCC Communications. FCC Communicatíons is one of the many Covernment Con-

sulting firms located in Ottawa. Fox states that his company makes sure "that they (the client)

are set up with everyone who touches on their case and that they have the right script. But when it comes time for the meetings, he pushes them out to perform alone on the stage."114

Fox and other lobbyists which only gather and sell the relevant information argue strenuously that they are not influencing policy and should therefore not be included as lobbyists.

When Bill Lee and Bill Neville were forming ECL in the late'1960s, they were agreed that they would do no face-to-face lobbying. They noted that "outsiders" had difficulty in getting their views through to government because of government complexity and the associated breakdown of consociationalism, and spied a niche which knowledgeable "insiders" such as themselves could fill and turn a tidy profit as well. They were of the opinion that with accurate

"mapping" and other pertinent information, clients were "further ahead doing (their) own lobbying on the basis of ECL's advice."115 Mapping refers to the practice of tracking the path of particular legislation and collecting information on the complex governmental and bureaucratic maze which needed to be negotiated in the process attempting to influence gouernrnent.l16

114 Sarah Jennings, "The Hired Cuns" in The Clobe and Mail, Saturday, September 29, 1990, C1. 115 Sawatsky, The tnsiders, 1987, 43.

116 See Cornrnons Debates, luly 25,1988, 17930 for a further explanation of mapping. 70

The Department of Consumer and Corporate Affairs under its Minister in 1985, Michel

Cote, noted that the matter of selling information or mapping was one issue which would require extensive debate if it was to be included as a procedure which would be included as a registerable lobbying activity. The Cooper Committee díd conduct a thorough examination of this matter and decided that the provision of mapping seruices was an indirect attempt to influence Bovernment decisions and, if it could be proved that payment was made for such services, would qualify as a lobbying activity. The individual or firm selling such information would be a paid lobbyist and required to registe, * ,u.h.t'7

3.4.2 Charter and Other Concerns

A further issue which required consideration dealt with another facet of who would be required to register. ln this case, the concern was with the "normal internal machinery of political parties."118 The issue was how to monitor that lobbying activity which may be suspicious and illegitimate, while not discouraging normal public input to government via political parties.

This issue was resolved by exempting volunteer lobbyists or those who only spent an insignificant amount of time engaged in lobbying activities. Though the Cooper Committee did not specifically mentíon this particular concern, the idea was not creating an obstacle for individual members of political parties from achieving access to their representatives. The Report of the

Cooper Committee considered that their recommendations had "achieved a balance between the issues of open and unimpaired access and transpar"n.y."' The public and politicians would be able to know who was influencing public policy and no individual would be dissuaded from "lobbying" his or her M.P.

- -l ,;*s of Proceedings and Evidence of the Standing Committee on Elections, Privileg- es and Procedure, January 27, 1987,2:13-14.

118 Consumer and Corporate Affairs, Lobbying and the registration of paid lobbyists: a discussion papeL 1985, 16. 11s rbid, 2:17. 71

Consumer and Corporate Affairs also identified the privileged nature of solicitor-client relationships as an issue which would have to be closely considered prior to legislating on the lobbyist issue. This issue will be further discussed in a future section on business concerns. For the purposes of the current discussion, it suffices to note that the 1985 Discussion Paperiden- tífied this as a potential problem. There arise situations where it would be detrimental or even disastrous to clients, particularly of lawyers and accountants, to have their names and business made public knowledge. For example, the situation could present itself where a lawyer was lobbying for the administering of a certain policy based on the need or advice of a particular client. lf that client was to be named, it might very well jeopardize the administration or interpretation for which the lawyer was lobbying. Again, the Cooper Committee debated this issue extensively. The Report concluded that "confidentiality...is deemed to be waived when the parties are dealing with matters of public policy."l20 (See Appendix C, especially recommendation no. 6 for further evidence of the feelings of the Cooper Commission on this issue.)

Another issue involved the possibility that lobbyist legislation would contravene the right of an individual to be heard by government. This would conflict with the right of freedom of expression which is protected by the Cha¡ter. Other possible difficulties with Charter guaran- tees (eg. freedom of association) could arise. Legislation would have to avoid potential conflicts with Charter rights and freedoms.

Other issues which were identified in the 1985 Discussion Paper and subsequently addressed by the Cooper Committee include the confidential nature of some sensitive information from foreign sources (how much information should be made public), how much information to be required, and the administration of a registratíon scheme. As the next chapter will show, these issues were, by and large, considered in the legislation called the Lobb- yists Registration Act. Whether one agrees with the way these issues were resolved or not, it must be recognized that some consideration of them went into the legislation. An often over-

120 lbid,2:14. 72

looked issue with the whole registration idea deals with the administration of the registry.

Who will be required to ensure that the information reported is accurate and that those lobb-

yists who do fall within the requirements for registration actually do register? Without a means

of ensuring compliance with registration, how far would any registration scheme be able to

attain the objective of transparent policy-making?

3.4.3 The Responsibility of M.P.s

One of the first issues dealt with in Consumer and Corporate Affairs 1985 Discussion Paper involved the possibility that lobbying legislation could adversely affect the privileges and immunity accorded to Members of Parliament. Presumably, M.P.'s, if required to register if they lobbied other M.P.'s, would consider this inappropriate. Though the public is generally aware that M.P.'s make policy in consultation with one another, no public knowledge is available as to which issues are influenced by which Members of Parliament. NDP M.P. Ray Skelly notes an occurence which speaks to this issue.

Lobbying is even being conducted by the Minister of National Defence (Mr. Beatty). There are reports in the newspapers that he is using officers of the Armed Forces to travel back and forth across this country promoting the (nuclear) submarine program. That is lobbying. lt is absolutely unacceptable. It apBgars to be politicízing of the Armed Forces, and we cannot tolerate that. '''

More importantly, the possíbility that M.P.s might be required to superuise the proper administration of the Act to ensure compliance would have to be studied. Members of Parlia- ment, nho are often the targets of lobbying and with the recent changes in legislative committees which see Members given considerable power, it is likely that this trend will increase. lt is difficult to imagine who would be in a better position to judge whether a lobbyist was registered than those politicians who were the recipients of the lobbying efforts of a particular lobbyist. Of course, the Cooper Committee studied this issue in great detail. lt noted that although "this idea (was not) among our recommendations at this time" (the Committee)

-î-¿"r".ons Debates, July'15, 1988, 17621. 73 would like to see such a system implemented in the future."122 The Committee felt that it was important that some responsibility for the admínistration of the Act be shouldered by individual Members of Parliament.

The Covernment of Canada and its employees are not considered lobbyists under the

Lobbyists Registration Act. Additionally, Members of Parliament are not assigned any responsibility for the admínistration of the Act. They are not even asked to ensure that an individual who is lobbying them is a registered lobbyist.

3.5 BUSINESS CONCERNS

When the issue of the depth of information required and the effect of lobbying legislation on the solicitor-client relationship was raised, consideration of issues which are of concern to the business community was begun. However, this discussion of business concerns was very superficial and even omitted certain items in which business has expressed a keen interest.

Earlier, it was mentioned that one characteristic of the Canadian political culture was a tendency to be wary of government intervention which is noted as a propensity toward individualism. While this tendency is not as pronounced as it is in the United States, with its strong liberal traditions, the level of acceptance of public intervention in the polity which is found in the United Kingdom is likewise not as visible in Canada. Like many issues, Canada's position is somewhere between these two nations. Many authors note this individualistic culture which exists in Canada.123

122 Minutes of Proceedings and Evidence of the Standing Committee on Elections, Privileg- es and Procedure, January 27, 1987,2:17.

These authors include Stanbury, Business-Government Relations in Canada, 1986, 319-21, Atkinson and Coleman,The State and Industrial Change in Canada,1989, B and Coleman and Skogstad, Public Policy and Policy Communities, 1990, B, among others. 74

Such a culture regards government action in the economy with suspicion and even hostility. Again, this attitude was borne out by many of the business people contacted. lf required to register, many business interests would be reluctant to lobby government because of this mentality, coupled with the issue of keeping sensitive material private and unavailable to competitors. This possibility is quite dangerous, particularly so when one considers the argument put forward by writers such as James Cillies who argue that business must be afforded a prominent position in the formation of public policy.t2a

To even the casual obseruer of Canadian politics, Thorburn's statement regarding the history of policy-making is not particularly striking. Thorburn notes that

Policy-making in Canadian government is dominated by two separate processes of consultation and negotiation: one between private interest groups and individual governments, and a second between governments !þ-emselves --- federal to [rovincial aná, less frequently, provincialio provincial.l2s

Neither is it particularly earth-shattering to note that the former consultations have been dominated by business interest Broups. lt is not necessary to look beyond past and present immigration policy to see the truth of this. Business concerns were paramount in fashioning the immigration policy which populated western Canada with 'suitable' immigrants to work the prairie land and buy manufactured goods produced in eastern Canada. Even present-day immigration policy, although tempered somewhat with philanthropy, is largely based upon obtain- ing those immigrants which business considers to be needed by the Canadian economy.

Hand-in-hand with the early immigration policy was the National Policy which established tar- iffs that protected and benefitted Canadian business by forcing western Canadians to buy goods manufactured in eastern Canada. Business concerns teamed up with political considerations to produce the infamous NEP (National Energy Policy) which provided business with

124 See CillÍes, Where Eusiness Fails, 1981,1-'11, Vogel, "Political Science and the Study of Corporate Power" in British Journal of Political Siudies, vol. 17, 1987 and Lindblom, Pol- itics and Markets, 1977, 106-11 for a discussion of this issue. Basically, the argument is that for the sake of economic health, it is vital that business be accorded a prominent position in consultations over the content and direction of most public policy.

125 Thorburn, Interest Croups in the Canadian Federal System, 1985, 3. 75

cheap energy. Legislation from pharmaceutical patents to pollution controls carry the stamp of

extensive lobbying by the business community. lt is held by many that the Business Council

on National lssues (BCNI) was mainly responsible for the Free Trade Agreement which Canada

and the United States negotiated in the mid-1980s.126 Businurs interests are heavily represent.

ed in the policy-making process and many would argue rightly so. "Business saw the advantage of organizing associatíons, permitting them to collaborate in their consultation with governrnent.127

To properly understand the gravity of the concerns of the business community, these business concerns must be accompanied by a re-examination of the underlying concept behind requiring lobbyists to register. The registration of lobbyists was based on the idea that there should be fair and equal access to policy-makers, that policy be made fairly according to all the interests which made representations in this system promoting fair and equal access, and that the whole process be visible to the general public who would ensure that the system operated accordingly.

There is a very forceful and compelling argument put forward that the importance of busí- ness to the economic health of a nation should mean that business concerns be given special consideration when debating public policy. This argument is convincing but too complex to relate in any more detail. However, even if this argument is set aside, the idea that business interests would be forced to compete with other societal interests in an open policy-making process would be condemned as a serious threat to the privileged input which business has traditionally enjoyed. Covernments rely on interest groups primarily for information and legi- timization and their ability to communicate government proposals and initiatives to their members. These functions are not monopolized by business Broups. lndeed, in the cases of legi- timization and communication, business groups might be bested by certain other groups that

126 Commons Debates, July 25, 1988, 17928.

127 Thorburn, lnterest Croups in the Canadian Federal System, 1985, 4. 76 are not business oriented. The idea of open competition would be understandably alarming to the business community.

Business Broups are, by and large, those groups which would be classified as institutional

(see Table 3.1) and rely less on publicity to influence government than any of the other groups found in the classification in this Table. lndeed, institutionalized groups are quite concerned with avoiding publicity as far as is possible. lt is to their benefit to do this as groups which use public opinion to support their representations are rarely rewarded with the ongoing cooperation of policy-makers. Business Broups often claim to be representing the public interest and have public support. However, visible demonstrations of this public support through publicity campaigns is not the usual method used by business groups. Decision-makers do not relish the public spotlight and this partly explains why institionalized groups maintain such close and consistent contact with governments. Just as diligently as institutional groups try to avoid publicity, single-issue (issue-oriented) groups often actively court media attention and seek to gen- erate as much publicity as possible. As the classification scheme reveals, issue-oriented groups also employ confrontational tactics in their communications with government. Affording issue- oriented groups equal access and input into public policy-making would redefine the way in which we make policy in this country. Are Canadians willing to accept policy-making based on public confrontation rather than the traditional concensus that has existed between members of policy communities. To the big business lobby, open and confrontational policy-makíng is anathema.

However, there are critics who would maintain that access does not guarantee that the representations of any group will be incorporated into policy. Of course, this is true but one should consider what this means and the possible trouble being courted. Essentially, what this mean is: allow interest groups to feel that they are involved in policy making, but turn a deaf ear to their representations once they have achieved access and fail to incorporate their ideas into policy outputs. Paul Malvern speaks to this issue. He writes that people have been encouraged to form groups and 77

make demands of government and have been told that it is their right to demand...anything they want. When they do not get their demands met, they feel angry and the victims of injustice. Had they not been so encouraged in the past, they might well not have had such unrealistically high expectations in the first place and would never have become alienated. The result of a large number of unfulfilled demands must inevitably be social discontent and unrest. Setting up segments of the populatíon li(ç^this is a serious disseruice to the peoplã and isîestructive of puUlic p"".".t" lf it is believed that business should be accorded special status in the competition over access to decision-makers and the contribution of society's interests to decisions, providing all groups with the facade of equal access and then not giving commensurate consideration to their views will be counter-productive.

However, the above description of business concerns is not meant to conjure up sympa- thy for the business community. If anything, consolation has to go to the drafters of the Act as there were a host of difficult issues with which they had to deal. These concerns serue only to identify further issues that would need to be addressed by Consumer and Corporate Affairs and the Cooper Committee. Business maintains a very important position in the policy process in a variety of ways. One of these ways is through the Senate.

Senators were not included in those that would be required to register. Apparently, this was in answer to the concerns raised about the privileges of M.P.'s. However, Colin Campbell questions the wisdom of this exemption given the powerful lobbying of Senators on behalf of business concerns. Campbell states that through the pecuniary interests of Senators, their links with business, and their powerful Banking Committee, business has been able to get its views through to government. Campbell comments further on this unsavory problem by noting that it is the people of Canada who are paying for thís inte¡vention on behalf of business.ttt Ho*- ever, even tryíng to register this lobbying activiÇ somehow may prove practically impossible as it is very doubtful that those concerns raised by Senators and the degree to whích they influence Bovernment policy would ever become public knowledge. The sometimes discreet meth-

Malvern, The Persuaders, 1985, 334,

Campbell, The Canadian Senate: A Lobby from Within, 1978, 69-71. 7B od in which Senators can and do use their influence is examined in an article exploring the relationship between Progressive Conseruative senator Michel Cogger, Liberal senator Pierre

De Bane and a money launderer from Canada's west coast, Paul Vidosa. While Cogger was not found to be assisting in the laundering of money, RCMP Constable Brian Sargent, who led the investigation into the suspected influence peddling, commented that Senator Cogger "was a man vvho had influence for sale."130

It was felt that a registry would not be effective in gaining the information which Ottawa sought. The public would not really be aware of those who attempted to influence policy.

Registration requirements could easily be circumvented. Paul Pross captures these business sentiments well. "The registration procedure would consequently create paperwork for legitimate groups but do nothing to illuminate the interests behind les*i legitimate organizations."131 Locks are only intended for honest people. lf someone wants in, they will not likely be deterred by a lock. Only lobbyists who lobby "properly" (i.e. legitimate lobbying) would bother to attempt to comply with registration. Those who are using questionable or íllegiti- mate lobbying methods would not be likely to register. As Lorne McCuish, one of the Conser- vative members of the Standing Committee on Elections, Privileges and Procedure indicated, they would only become more devious in their attempts to avoíd detection.132

130 Alan Freeman, "lnfluence peddling suspected" in Clobe and Mail, Feb. 6, 1991, A4. 131 Pross, 1 986,263. 132 Sawatsky, The Insiders, 1987,324. 79

3.6 SUMMARY

Thus far, we have explained the rise of lobbying and the evolution of paid and professional

lobbyists. Legislation to avoid the possibility of illegitímate lobbying without blocking access

to governmental decision-makers by legitimate lobbyists was considered necessary. This chap-

ter explored some of the major issues involved in drafting such legislation. ln addition to the

major issue of trying to distinguish between legitimate and illegitimate lobbying, the Standing

Committee which investigated the whole idea of registering lobbyists considered what consti-

tutes lobbying and thereby who might be required to register. This Committee also briefly

considered how such a registry might be implemented and administered. ln a concluding sec-

tion of this chapter, we explored some business concerns with any legislation which would

require lobbyists to register.

We will next look at the Lobbyists Registration Act to witness the manner with which these various issues were dealt. The chapter illustrates how greatly the Act differs from the

Cooper Committee's recommendations and subsequently how effective the actual legislation is likely to be considering the objectives which were established. We will then be able to proceed with an analysis of the Act in light of some of the issues which we have identified here. Chapter IV

A LAW EORN 'S

As has been noted, the government's response to the promise of legislation on an urgent basis was a Discussion Paper put out by the Department of Consumer and Corporate Affairs.

Bill C-82, the legislative forerunner of The Lobbyists Registration Acf was only drafted years after this initial promise of legislation and differed significantly from both the tone of this Dis- cussion Paper and the recommendations of the Cooper Committee. Many observers contend- ed that the opposition of professional lobbyists and some of their clients had weakened the

Bovernment's commitment to registration but that the public announcement of the Prime Min- ister, exploits of friends turned lobbyist (líke Frank Moores) and the unanimous report by the

Cooper Committee required some manner of legislation, even if it was only symbolic. Bernard

Roy, principal secretary in the PMO, was quite candid with those lobbyists who had approached him regarding the government's commitment to lobbying legislation. Roy understood and sympathized with the intensity and reasoning of the objections to registration these lobbyists conveyed, but bluntly stated that the public commitment to registration made by the

Prime Minister could only be dismissed if this was the recommendation of the Standing Com- mittee which would investigate the matter.133 Despite the concerns voiced by some Conser- vative members that the whole idea of lobbying registration was a bad idea taken to try and restore the Conservatives damaged reputation,t34 the Standíng Committee was unanimous in its endorsement of public registration. The government had little choice; legislation was duti- fully drafted.

133 Sawatsky, The Insiders, 1987, 11. 134 Montreal Cazette, "Tories back down on lobbying law," Dec. 20,1985,81, -80- 81

The true strength of the government's commitment to an effective registration scheme will likely never be known. Business was strongly opposed to any form of registration and it is only reasonable to assume that the lobby against registration was both intense and impressive.

Table 4.1 lists all Canadian witnesses and submissions to the Cooper Committee. More than

50 per cent of these witnesses and submissions came from the business community. Apart from the radical difference between the recommendations of the Cooper Committee and Bill

C-82, which alone calls into question the government commitment to legislation, the extent and effect of the antí-registration lobby will, in all probability, remain a mystery.

Don Boudria reports that the Minister of Consumer and Corporate Affairs threatened to scuttle the lobbying legislation if particular members of the Legislative Committee did not stop pushing for amendments. The Minister, Harvie Andre, was refering to Messieurs Boudria and

Rodriguez. Boudria claims that Mr. Andre "threw a temper tantrum."13u M.P. John Rodriguez added that "(Mr. Andre) was an unwilling sponsor of this Bill (Bill C-82). He did not even want a lobbying bill."136 Although it is prudent not to assign too much significance to the often jaundiced comments of M.P.'s in the paÍisan House of Commons, Cyril *""pu., the NDP

Member for Winnipeg North, states that B¡ll C-82 "represents flim-flam by a powder-puff Min- ister who was not committed to the whole concept of registering lobbyists and lobbyin g."tu'

The Calgary Herald indirectly commented on the Bovernment's commmitment to registration by questioning the effectiveness of the bill in making the policy process transparent and the long delay between Prime Minister Mulroney's commitment to legislation and the introduction of this bill, and then the long delay again between First and Second Reading of the Bill. The editorial concluded with the sentiment, which others have echoed, "that Bíll C-82 is almost too weak to bother with, but is, just barely, better than nothing."t"

-.-----rrr Commons Debates, July 25,1988,17924. 136 rbid, July 15, 1988, 17620. 137 rbid, July 2s,1gìg,17gzs. 138 Cilgary Herald, "Lobbyist Bill Overdue," April 18, 1988. 82

TABLE 4.1

Witnesses Appearing before The Cooper Commission

WITNESSES

Honourable Michel Cote, Minister Executive Consultants Ltd. of Consumer and Corporate Affairs, Canada

lnstitute of Association Executives S.A. Murray Consultants

JohnRodriguez,M.P. Thom, Malcolm and Associates

CovernmentConsultants lnternational Canadian Coalition on lnc. Acid Rain

Honourable James A. Mccrath, P.C., Les Partenaires M.P.

Canadian Bar Association Public Affairs lnternational

Dow Chemical Canada lnc. Public Affairs Management lnc.

SUBMISSIONS FROM:

Aggregate Producers' Canadian Real Estate Association Association of Ontario

Canadian Association of Canadian Urban Transit University Teachers Association

Canadian Cable Television Robert H. Carlton Association Canadian Chamber of Commerce Cooperative Union of Canada

Canadian Construction Assoc. Norma Evans

Canadian Federation of lmperíal Oil Ltd. lndependent Business

Canadian Cas Association William Kennaley

Canadian J ewish Congress David A. Lloyd-Jones

Canadian Manufacturers' Assoc. National Farmers Union

Canadian Medical Association National Voluntary Organizations

Canadian Owners and Pilots Progressive Conseryative Party, Association Women's Bureau B3

A very important recommendation of the Cooper Committee which was dismissed without debate or justification, would have helped dispel a great deal of speculation over the government's commitment and accusations that lobbying had weakened their resolve to the idea. ln its RepoÉ, the Cooper Committee, in addition to expressing that Consumer and Corporate

Affairs consult with it when drafting Bill C-82, advised that the introduction of the legislation

"be accompaníed by a list setting out the names of those who contacted the government on the subject of the drafting of the lobbying legislation."t3e lf thi, advice had been heeded, at least Canadians would have known the extent of the anti-registration lobby, who was doing this lobbying and perhaps it would even be revealed what the general contributions of these

ínterlocutors had been. This procedure was not followed and there was no reason given why, except that Consumer and Corporate affairs did not consider that it would reveal any further informatíon.too gill C-82 was tabled ín the House of Commons on June 30, 1987 six months after the Cooper Committee report. A motion to read the Bill a second time and refer it to a legislative committee was moved by Consumer and Corporate Affairs Mínister Haruie Andre on

March 8, 1988. This motion was carried on March 14, 1988. All 11 amendments which were proposed by this committee were either ruled out of order or defeated. Seven of them were disallowed by the Speaker of the House as counter to Parliamentary rules, and the remaining four were negatived on division. AII of the proposed amendments were introduced by M.P.'s

Boudria and Rodriguez, two of the original members of the Cooper Committee. All but two of these amendments were simply designed to bring C-82 back into harmony with the Cooper

Committee recommendations.

Boudria and Rodriguez had compromised on their demands for a comprehensive registra- tíon which would solicit more information and include many more lobbyists than would have been acceptable to the Committee. They felt that if they compromised to get a unanimous

"t-- *;*s of Proceedings and Evidence of the Standing Committee on Elections, Privileg- es and Procedure, January 27, 1987, 2:18. 140 Personal correspondence with Consumer and Corporate Affairs, May 2,1991. B4 report, the government would introduce legislation that was, more or less, a replica of the

Committee's recommendations.l4l When they saw that Bill C-82 was nothing like their recommendations, they understandably felt ridiculed and betrayed and obligated to propose substantial amendments to the bill during the hearings of the Legislative Committee.l42

Their major objection was with the separation of paid lobbyists into two categories with substantially less information required of lobbyists who were classified in the second category.

These category ll lobbyists were called Tier ll lobbyists or "other lobbyists" and were primarily

"in-house" Iobbyists in the employ of a firm, association or Broup. The principal difference between these Tier Il lobbyists and the other category of lobbyists, Tier I lobbyísts, was that

Tier ll lobbyists were not for hire by any group or individual that could pay, but already worked for a specifíc employer. Often Tier ll lobbyists were employees in the Covernment

Relations Department of a corporation. They could also be employees of groups or firms which only lobbied government on an infrequent basis. The principal duties of this type of Tier ll lobbyist would not involve lobbying. Tier I lobbyists are mainly professional lobbyists, those full time professional lobbyists who rent their services out to clients. These would be Covern- ment Relations consultants and sometimes lawyers and accountants who provide lobbying services to clients. Clients are deemed to be those

individual(s), organization(s), or corporation(s) on whose behalf you (the paid lobbyist) undertake lobbying activities and who would be the true beneficiary of the undertaking íf successful. lntermediaries, be they professional advisors or corporations do not qualify as "clients" under,jþe Act. /n some cases, úhe client may not be the one who pays or hires yoLt''" (emphasis mine).

One of the complaints against the setting up of a system of tiers of lobbyists was with this idea that a lobbyist might not be getting paid by the same group being represented. This was recognized as a possibiliÇ concerning Tier I lobbyists, but considered unnecessary for Tier ll

141 Commons Debates, July 25,1988, 17923.

142 rbid.

143 Consumer and Corporate Affairs, lnformation on the Lobbyisß Registration Act and Regulations, 1 988, 13-14. 85 lobbyists.

Consumer and Corporate Affairs Minister, Harvie Andre, submitted a brief to the Legisla- tive Committee studying Bill C-82 in which he defended the tiering of paid lobbyists even though this plan was not recommended or even studied by the Cooper Commission^ Boudria and Rodriguez were at a loss to explain where this idea had originated. Andre remarked that

"(s)ince it is usually clear to the public office-holder who these people (Tier ll lobbyists) represent --- through their business cards, for example --- they only have to register their names and the names of the organization employing them."144 lt was asked if this would hold true for those Tier Il lobbyists who were employed by large corporations with numerous and diverse subsidiaries. As discussed previously, the name and company on the business card might be ilì" .o-p"ny paying the salary of the Tier ll lobbyist, but it would not necessarily be the

'client' for whom the lobbyist was working.

This possibility is confirmed by a Tier ll lobbyist for a major Canadian life insurance company. This man is employed as a Covernment Relations Officer for the life insurance company, but reveals that he is occasionally used to lobby government in an area totally unrelated to the insurance profession (like gas and oil). The gas and oil company on whose behalf he is lobbying is owned by the life insurance company but does not employ this lobbyist and is not listed on the business card which the lobbyist is able to use to register. ln such a case, the public would not know who actually influenced any government decision which may result from this lobbying.lat Conru.", and Corporate Affairs responded by saying that "this Çpe of lobbying was very unusual and was not of significant frequency to warrant requesting any more detailed information from Tier ll lobbyists.la6

Consumer and Corporate Affairs, Speech, Notes for Remarks by The Honourable Harvie Andre, P.C., M.P., Minister of Consumer and Corporate Affairs Canada before the Legis- lative Committee on Bill C-82, April 12, 1988, 6-7.

145 Confidential interuiew, August 23, 1990. See also the Comrnons Debates, July 25, 1988,17927 for additional comments by lohn Rodriguez concerning the possibility and frequency of this type of lobbying. B6

Six of the 11 proposed amendments concerned the issue of the paucity of information

required of Tier ll lobbyists. Boudria contends that "we (Members of Parliament) are asking far too little of Tier Il lobbyists."147 As welI as the inadequate information required of Tier Il lobbyists, John Rodriguez proposed an amendment to Bill C-82 which would require that lobbyists

classified as Tier ll be considered lobbyists when attempting to influence "the awarding of any contract by or on behalf of Her Majesty in right of Canada."148 lnfluencing or attempting to influence the awarding of government contracts is defined as lobbying activity for Tier I lobbyists but is excluded from the activities which constitute lobbying if engaged in by a Tier ll lobbyist. No justification was given for this by any spokesperson for Consumer and Corporate

Affairs. The Cooper Committee "held that a lobbyist is a lobbyist is a lobbyist and that whether lobbyists are hired by a private company or an association such as the Pharmaceutical Asso- ciation, their activities are identical."1at Th"." should be no differentiation made among paid

Iobbyists.

Other proposed amendments intended to bring Bill C-82 into harmony with the Cooper

Committee recommendations concerned the banning of contingency fees and the issue of including influencing policy through the technique of mass mailings as a registerable lobbying activiiy. While both ideas were recommended by the Cooper Committee, neither was included in Bill C-82. Contingency fees, or bonuses if results are obtained, are maintained as encour- aging lobbyists to use improper techniques like influence peddling by increasing the amount of compensation which can be received if the lobbyist is able to succeed in having the client's interests incorporated into government policy. Mass mailings are often used to attempt to influence politicians through public opinion. Form letters are distributed to a large number of citizens who are then encouraged to sign them and mail them to the the relevant decision-

146 Personal correspondence, May 2, 1991.

147 Commons Debates,.luly 15, 1988, 17618.

148 Lobbyists Registration Acf, Section 5(f).

149 Commons Debates, July 15, 1988, 17619. 87 makers, usually elected politicians. Figure 4.1 is an example of an attempt to influence policy- makers via the technique of mass mailing. The issue is who is behind this type of lobbying, and should the public know this íf it is to be aware of who is influencing public policy. With increases in the power of legislators and legislative committees, mass mailing campaigns are being resorted to more frequently and public will not be aware of those initiating these attempts to influence policy if this activity is not included as lobbying.

Of the two other proposed amendments, one would have seen the registry administered by an officer of Parliament rather than a civil se¡vant in the employ of Consumer and Corpo- rate Affairs. lt was held that since an Ethics Commissioner was being created anyway, the logical place to house the registry would be with this independent officer of Parliament. The other amendment would have required registered lobbyists to disclose financial information about their lobbyíng efforts. This latter idea of financial disclosure was an issue which Boudria and

Rodriguez had abandoned when sitting on the Cooper Committee. They reasoned that a unanimous report from their Committee would all but guarantee legislation while anything less than unanimity might scuttle the whole issue. If the government was looking for a way to back out of its commitment, a divided Committee report might provide the escape. The requirement to report fees would not have received unanimous endorsement. The two M.P.'s (Boud- ria and Rodriguez) compromised on this issue, agreeing to abandon it with the intention of raising the matter at Committee Hearings after Second Reading.ls0

Finally, after the last of the proposed amendments was defeated on July'lB, 1988, the Bill was read a third time and passed. The vote was 87 in favour and l4 opposed. After passing the House of Commons, the bill was introduced into the Senate on September B, 1988. Bill

C-82 received Royal Assent on September 13, 19BB and was thereafter known as the Lobbyists

Registration,Acf. Paid lobbyists were given one year to register before the Lobbyists Regisfra-

150 The exact contents of the proposed amendments are disclosed in the House of Com- mons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-82, Wednesday, April 27,1988 and Commons Debates, July 15, 1988, 17616-18 and July 78, 1988,17694-96. B8

Figure 4.1: An example of a mass mailing

#.4 ffiüãäãæm #æs?ædaæm sffi#kærs,

ffitrþ

Thev need to be told snrôkers count tool

HERE'S HOW TO PROTEST FIEE: I Læx icr Llrs Tai.ctesî :rm i:ãt 4 ¡ rs ¡¿r1 oi rcst c€arene cacxs ,ine Insrde Dortton) and sl¡d€ tt o{n. cr For your information ask br ne lm at tob€ccc cauniers. here is the â f,¡ñ ?our name añd address on the ú ¡ lorm ano stgn ¡t. TAX BREÄKDOWN .: m a pad< of tær ofl t¡o foidlrìg lT¿F ¿nd C;co :r 9 . the onnteó gsrt 'æÍtd pordff' rn 25 dgþrettes æ ¡urlbor NO POSTAGE REQUIRED as it affects you: ì: - C¿nada Post Hll deliver ¡t io iie ¡: Pnme Minrter. FREE! 9 E:peæs yu oçr'nin æ rrwy ürc Federal s2-37 õ yfl wÈlr lÊist m å Epat Provincial s2-39 þ:É_ Total Tax -s4.76* *þr Canadian Tobacco _)---¿ i* Manulacturers' Council 9nÞqrm orr.rd û NEOffiEÊÉ. ta ¡0ú ¡ûa rffi rr @, I rF¡atsws;ndt¡s"áw 'rwrt¿ îæs gn m¿c ø r¡iu ffi Ég c,t t5.33 rn O¿ Ê'trrü¿ d [h¡.r- 89 tion Act was proclaímed. Over four years had elapsed between Mulroney's initial announcement of legislation on an urgent basis and the proclamation of the Act. (Also see Appendix B.)

4.7 THE LECISTATION BECOMES LAW . THE LOBBYISTS REGISTRATION ACT

It has been noted that following Prime Mínister Mulroney's announced commitment to introduce legislation to control potential abuses by paid, thírd-party lobbyists on an urgent basis, almost 2 years passed before such legislation was tabled in the House of Commons. This delay was justified as necessary to study and research the complex issues involved in creating such

Iegislation. The initial problem lay with the tension between the two main objectives of a plan to control and publicly expose third-party lobbying without hindering input from other interest groups. Legislation needed to be strong enough to be perceíved as an effective check on the possibility of influence peddling and other "improper" lobbying by some paid lobbyists. At the same time, the legislation could not impair access to policy-makers by legitimately concerned interests and make the necessary input of such groups something which they would then avoid. Coleman and Skogstad develop the concepts of logic of influence and logic of membership which effect the organízational development of societal interests. Logic of influence pertains to environmental factors including past state policies and funding while logic of membership variables refer to "economic, cultural, and ideological diversity; geographic dispersion; and an ideology of indívídualism and independence."lsl The legislation needed to be sensitive to this ideology of individualism and independence that is ingrained in Canadian political culture. Access could not be hindered in any way since there was little possibility that a single association or group could achieve legitimacy as representative for the diverse societal interests throughout the country.152 rïr- Coleman and Skogstad, Policy Communities and Public Policy,'1990, B.

152 This assertion was corroborated by numerous spokespeople for an important sector in the Canadian economy, the forestry sector. Many companies in this sector felt that a peak or umbrella association in their sector would neither work nor was wanted. The diverse needs of the individual companies was considered greater than any benefits which might result from one peak association. As well, a strong current of an individualistic nature was apparent. Many firms felt they could go it alone and do better than if 90

This individualistic tradition was not only readily apparent in the organizational characteristics and cooperational tendencies of individual interest groups and policy communities, but spilled over into the ranks of professional lobbyists. Many complained that government inter- ventíon in their industry was simply unwanted and undesirable intrusion into the private economic lives of entrepreneurs competing for the right to represent Broups "wishing to communicate with government."l53 They see lobbying as a natural right, not a privilege which does not extend to everyone. Pross dismisses their complaint rather handily in a manner reminiscent of the Cooper Committee Report. Pross concludes that "(m)ost taxpayers would argue that in the final analysis their money is at stake in the lobbying game and they have a right to know who has influenced government decisions."lso Thi, argument by some lobbyists is not very convincing. lf nothing else, this argument demonstrates the degree to which some professional lobbyists were prepared to go in their arguments against any registration scheme. While this argument may be dismissed as an extreme example, it does illustrate the individualistic, classi- cal liberal strains that are evident in the Canadian politícal culture.

Many professional lobbyists were concerned that registration would be the forerunner of more severe government intrusion in the form of burdensome regulations. Covernment was aware that it was already perceived as too involved in the economy, in the opinion of many

Canadians. The Conseruative government of Prime Minister Mulroney, thought by many to be less interventionist and more laissez-faire than the previous Liberal Covernment was loathe to pass legislation which could be seen as complex and regulatory. As Paul Pross obserues, "lt

(the Lobbyists Registration Act) is too respectful of the anti-regulatory biases of business."155

Business feared for their privileged position in public decision-making and must have con-

they were to pool resources and form a peak association to represent their concerns. There was also a element of mistrust of the competition which would prevent firms from joining with rival fírms in the same sector to form a joint representative body.

153 Pross, "Light on Lobbyists" in Policy Options, 1987,3-4.

154 tb¡d,4.

155 tbid, 5. 91 vinced the government of the intense objections they had to registration, The government said that effective legislation, in the sense of informing the public and office-holders as to who was influencing public policy while not creating a system which created insurmountable obsta- cles to legitimate input because of complex rules and administrative complexity was the goal.

The Covernment attempted to reassure "regulation-fearful" critics by emphasizing that the

Lobbyists Registration Act was not, and should not be construed as legislation which in any way regulates lobbying, but only requires the simple registration of paid lobbyists.lsu A .opy of the Act is provided in Appendix E and, after sifting through the Legislation, it is difficult to justify calling the Act non-regulatory.

Although a definition of regulation is not arrived at easily, there are several key compo- nents to any such definition. Regulation is a compulsory set of rules which describe pàrmissi- ble behaviour thereby infringing upon the liberty of individuals or groups and is enforced or

enforceable through some system, usually legal.1s7 Whíle the Lobbyists Registration Acf does not define permissible activities in which lobbyists may lawfully engage, it does establish compulsory rules about who is to register and when; it also adds enforcement provisions to ensure that these rules are followed. The Act certainly ínfringes upon liberty. The question might more aptly be, "is the infringement justified?" Consumer and Corporate Affairs can offer nothing convincing. They maintain that while it would be possible to view the Act as regulatory, it should not be as the intent was not to regulate lobbying but merely require paid lobbyists to register.rss lt should be emphasized that the usual definition for regulation stresses that behaviour is governed and those regulated are advised what behaviour and practices are

156 -- -- Consumer and Corporate Affairs, lnformation on the Lobbyists Registration Act and Regulatìons (emphasis mine), 1989, 2. 157 Pocklington, ed., Liberal Democracy in Canada and the lJnited Súates, 1985,66-7.

158 Consumer and Corporate Affairs Canada, personal correspondence, February 11 ,1991 . This is an extremely perplexing utterance and causes this writer a great deal of discom- for-t. This statement by Consumer and Corporate Affairs, without wanting to sound overly dramatic, seems vaguely reminiscent of official Moscow's assertion that there are no longer classes in Russia because the State declares it. lf the facts do not agree, it is the facts that are in error. 92 acceptable and those that are not. There is no explicit regulation of behaviour in the Act, and,

ín this sense, the legislation is indeed non-regulatory. Perhaps, as Pross claims, the real significance of the Act is that it is recognition of a problem and declares that lobbying can and will be regulated if necessary.

lndívidual readers are left to ponder and perhaps pronounce on the "regulation vs registration" argument. We must Bo on to other matters. The focus of this chapter is primaríly to detail and explain some aspects of the Act which are important. A general overview of the Act reveals the essentials. Appendix E, the actual legislation, is provided as a complement to this chapter.

Firstly, the Act is only applicable to ceftain individuals (not companies) who, for pay, engage in activities which are defined as lobbying. Lobbying is broadly defined as attempting to influence any of the following:

1. the development of a legislative proposal by the Covernment of Canada or by a member of the Senate or the House of Commons,

2. the introduction, passage, defeat or amendment of any Bíll or resolution before either House of Parliament,

3. the making or amending of any regulation within the meaning of the Statutory lnstruments Act,

4. the development or amendment of any policy or program of the Covernment of Canada,

5. the awarding of any monetary grant or contríbution or other financial benefit by or on behalf of Her Majesty in right of Canada, or

6. the awarding of any contract by or on behalf of Her Majesty in right of Canada.lse (This last activity is not considered to be a lobbying activity for Tier Il lobbyists.)

All individuals engaged in this activity are required to register with a division of Consumer and

Corporate Affairs and supply particular information about their clients, i.e. those who are paying them to lobby. This, it is assumed, will enable the public and public decision makers to discover on whose behalf the paid lobbyist is working and who is influencing public policy. rss--^ -- Covernment of Canada, the Lobbyists Registration Act, 1988,3-4. 93

Non-compliance with the requirements of the Act is an offence which can be prosecuted summarily or via indictment. Possible penalties include fines --- to a maximum of $100,000.00 and/or imprisonment to a maximum of two years.

All information collected by the Registration Branch of Consumer and Corporate Affairs is open to the general public for inspection. There is no charge for this inspection. However, nominal fees are charged for copying of completed registration forms or other documents in the Registry's files. As well, the Registration Branch offers computerized data searches and charges a small fee for this service.160

Several points of the Act are important enough to warrant further discussion. As has been obserued, legislation had to fulfill two crucial, but conflictual goals: deter the possibility of abuse by lobbyists by requiring them to register and disclose the parties for whom they lobbied without creating a system which would inhibit access for what the Covernment considers legitimate input. ln essence, what the Lobbyists Registration Act was intended to inhibit the perceived privileged access of some lobbyists while not hindering access for other "regular" lobbyists.

This task was considered to have been accomplished by dividing lobbyists into three categories, two of whom - Tier I and II - are required to register. The third class of lobbyists - vol- unteers - are not paid and therefore not required to register. Table 4.2 illustrates the important characteristics of the Lobbyists Registration Act.

As briefly mentioned above, Tier I lobbyists are required to provide more detailed information on themselves and their clients than are Tier Il lobbyists. As well, this category of paid lobbyists is required to "register within 10 days after commencing the lobbying activity."161

Like their Tier ll colleagues, though, Tier I lobbyists are only required to report changes to the

Consumer and Corporate Affairs, lnformation on the Lobbyists Registration Act and Regulations, 1988, 13-1 4.

161 tbid, 4. 94

TABLE 4.2

The Lobbyists Registration Act

DESCRIPTION LOBBYIST and PROVISIONS Tier I Tier ll Volunteer

Registerable Yes Yes No

AKA Profes- Employee Unpaid sional

Time signif- Spent fuil-time icant Lobbying 100% amount

lnformation name and name and Required address, address of address of self, self and client and employer client's subsidiaries, subject matter, lobbying activíty

Financial Disclosure No No

AvailabiliÇ of lnformation Public Public

Registration Fee None None

Penalties for Non-Compliance Yes Yes

information they provided initially as soon as is practicable. The Act does not comment on what precisely constitutes a change or offer any concrete time frame for the vague wording,

"as soon as is practicable." There is a great deal of confusion among lobbyists, both Tier I and 95

Tier ll as they are both required to report changes. lt seems that lobbyists should consider and report everything as a change and let Consumer and Corporate Affairs ultimately decide on whether the information actually constitutes a ch"nge.16t th" Lobbyists Registration Branch of

Consumer and Corporate Affairs recommends that lobbyists who are in doubt over whether to report something as a change should do so and allow Consumer and Corporate Affairs to determine whether it truly does constitute a change.

Section 5.2(a) of the Act also requires Tier I lobbyists to specify the policy area in which their efforts are expended. Tier I lobbyists also must report the methods used in their lobbying campaigns. Neither the issues or method are required of Tier ll lobbyists. (See Appendix F for a sample of Tier I and ll Registration Forms.)

Payment is crucial to the entire legislation as the Act is only applicable to paid lobbyists.

However, payment was given "a very comprehensive meaning...under the Act. (lt was declared to be) money or anything of value, including a contract, promise, or agreement to pay anything of value."163 Volunteer lobbyists, who neither charge nor accept payment are released from any obligation to register. The head of an organization, as long as s/he did not receive payment, could lobby officials and influence policy outcomes, but not be required to register.

The public might never know who such a lobbyist was and what policy or legislation was formed because of his/her efforts.

As well, it would be incumbent on any lobbyist to voluntarily report a payment according to the definition of payment set out by the Lobbyists Registration Act, especially if the exchange was not easily verifiable, A feeling of obligation is extremely hard to prove in a court of law. lt would be the task of any prosecution for breach of the Act in this regard, to prove, beyond a reasonable doubt that any valuable good received by a lobbyist was a consequence of the lobbying seruice performed. Violation of the Act is a criminal offence and must, there- a'--r¿ì0. 163 rbid, 4. 96 fore, satisfy the "guilt beyond a reasonable doubt" provision of criminal litigation. lt would seem reasonable to speculate on the meaning of assigning such a broad definition to what constitutes payment. Was this just symbolic? lf payment is made, but not reported or recorded as the individual who received the payment did not want to register, who is to say that payment was indeed made? A lobbyist who lobbies illegitimately by usíng undue influence is not likely to volunteer information that s/he ís actually a paid lobbyist and should have registered.

Man may indeed become more devious as there is an added incentive for lobbyists using improper means to escape detection.

Tier ll lobbyists are required, as noted by one Senator, to províde only "the same information available on their business card."164 Only the Tier ll lobbyist's name and the name and address of the employer need be reported. As discussed, this requirement, argues Consumer and Corporate Affairs, satisfies the requirement that registration for legitimate lobbyísts be simple and non-threatening. It is maintained that the goals of such lobbyists will be obvious and will, therefore, dispense with the need for any additional or detailed information. Open and irreproachable policy-making, the other objectíve of registration, will also be achieved.

Consumer and Corporate Affairs readily admits that big corporations with numerous and diverse subsidiaries are more apt to retain an "in-house" (i.e. Tier ll) Covernment Relations

Officer; their own corporate lobbyist. "Small businesses are more likely to retain a Tier I lobbyist than are larger businesses, who are better able to afford hiring Tíer ll lobbyists."l65 These

Tier Il lobbyists, these employees, who may very likely be working for a subsidiary of the firm which employs them, and therefore not be required to report on whose behalf they are actually lobbying, are only considered to be lobbying if they spend a significant amount of their time engaged in lobbying activities. lf it is considered that they do not spend a significant amount

164 Canada, Minutes of the Senate Committee on The Lobbyists Regístration Act, Septem- ber 2, 1988.

165 Consumer and Corporate Affairs, "Extract," Canada Cazette, Part ll, September 13, 1989, 11. 97 of tíme lobbying, then they are excused from registering. The Act, however, does not stipulate what constitutes a significant amount of time nor offer any assistance on how this might be determined.

The Act exempts numerous officials. These include:

1. members of the legislature of a province or persons on the staff of such members. (Consumer and Corporate Affair's lnformation package extends this to include terri- torial governments.)

2. Employees of the Bovernment of a province (presumably territories, too).

3. Members of local or municipal governments or their staff.

4. Employees of local or municipal governments.

5. Members of the council of a band (as defined by the lndian Act), staff and council employees.

6. Diplomatic agents, consular officers, ambassadors and other official representatives in Canada of a foreign government.

7. Officials of a specialized agency of the United Nations or officials of any other international organization to whom is granted, by or under any Act of Parliament, privileges and immunities.

It should be noted that these exemptions are applicable when these individuals are performing work in their official capacity. Nevertheless, this broad category of exemptions is questionable given the objective of informing the public of those individuals who are influencing public policy. This issue will be more fully discussed in the next chapter.

Simplicity was given a high priority when the Act was drafted.166 As Pross notes, the information gained via registration cannot only be effectíve as a means to control illicit lobbying, but can also be discriminatory and intimidating to groups with a paucity of ,.rorr.ur.t67

Certainly, the information required of lobbyists, especially Tier ll lobbyists, compl¡es with the

"simplicity" priority. Though great care has to be taken to balance the objective of enough

166 Consumer and Corporate Affairs, Speech, Nofes for Remarks by the Honourable Harvie Andre, P.C., M.P., Minister of Consumer and Corporate Affairs Canada before the Legis- Iative Committee on Bill C-82, April 12, 1988,5.

167 Pross, Group Politics and Public Policy, 1986,264. 9B information with the problem of intimidation because of too much information, it can be asked whether the Act has leaned too far towards the simplicity requirement. Though criticized for demanding complete disclosure of most subsidiaries of corporate clients of Tier I lobbyists, which many professional lobbyists complain was often simply an unrealistíc proposition, the

Act while requiring disclosure of some useful information about a given lobbying campaign, solicits no information relating to the persistence of the lobby or the amount of money spent on any particular lobbying effort. Professionals complained that this kind of information would be difficult to specify and essentially meaningless even if it could be made available. Haruie

Andre made the same point by testifiying before the Legislative Committee. Some record of the expenses incurred during a lobbying campaign was thought to be necessary if the public was to know wlo was influencing public policy. However, Andre declared, "As for expenses, I don't know why the public would care how much a lunch costs or how much the lobbyist's cab fare was from the airport to Parliament Hill. To me, this is of no practical use or purpose.

It is simply voyeurism."l68 De-anding this information was also considered to be an unwar- ranted invasion of privacy between individuals.

While the Act is quite explicit about who is to collect the registration information, where it is to be stored, its availability for perusal, penalties for non-compliance, etc., it does not provide direction for initiating investigations or prosecutions under Section '13 (see Appendix E).

Section 13 deals with offences and punishment but does not offer a process to follow. This absence of what some commentators lrave referred to as "teeth" is compounded by an information booklet published by Consumer and Corporate Affairs.

ln establishing a registration system for paid lobbyists, Parliament expected that the legislation would achieve a high level of compliance through general education and communication programs. The Registrar will supplement these approaches with advisory opinions and information contacts designed to facili- tate complíance with the Act. Lobbyists deal with the government on a regu- Iar basis; they should be able to ensure that they are in compliance at all

168 Consumer and Corporate Affairs, Speech, Noúes for Remarks by the Honourable Harvie Andre, P.C., M.P., Minister of Consumer and Corporate Affairs Canada before the Legis- lative Committee on Bill C-82, Apri!12,1988, 5. 99

. 169 ttmes.

This counsel may be fine for Tier I professional lobbyists, provided they are willing and able to comply with the Act. Their ability to comply with the Act would be non-existent if they were not anare of the Act. This does not seem to be a problem among Tier I lobbyists. How- ever, in conversation with many lobbyists which the Act would classify as Tier ll lobbyists, the lack of knowledge about the very existence of a Lobbyists Registration Act was consíderable.

Table 4.3 shows the level of knowledge that exists concerning the Act among many Tier ll lobbyists which were consulted in preparation for this study. lt is organized according to the

TABLE 4.3

Knowledge of Registry among Tíer ll Lobbyists, 1990

lnterest group Degree of knowledge

Very Somewhat Not at all familiar familiar familiar

lnstitutional 76% 15V" 9o/o

Mature 54o/o 34o/o 12V"

Fledgling 35% 34V" 31o/"

lssue 14o/o 38o/o 48o/o Oriented

TotalN 21 31 4B

Source: Personal communications with various lobbyists in the forestry, agricultural and small business sectors in the provinces of British Columbia and Manitoba.

Consumer and Corporate Affairs, Information on the Lobbyists Registration Act and Regulations, 1988, 12. 100

Çpe of interest group surveyed. lf Consumer and Corporate Affairs was relying upon general

education and communícation programs to ensure compliance, it appears as though their faith was misplaced, especially as concerns Tier ll lobbyists. Tier ll lobbyists cannot very well register if they do not know that they are supposed to. Though these data only represent three sectors in two provinces, the idea that they convey is that there is a considerable lack of knowledge about the Act among Tier ll lobbyists. The suspicion which these data suggest seems corroborated by statistics of Tier Il lobbyists'registrations during the 1990-91 year.

While Tier I registrations for this period increased by over 40 per cent, Tier II registrations only advanced by a miniscule three per cent over 1989-90.170

The people one logically would think most appropriate to ensure compliance with the provisions of the Act, the policy-makers who are targeted by lobbyists, are not even asked to make certain the lobbyists they see are registered.

The Lobbyists Registration Act does not require public office holders (i.e. federal employees, MP's, Senators, Ministers) to ask a lobbyist if he or she is registered, to refrain from contact with unregistered lobbyists, or to otherwise "police" the Iegislation...fu appropriate, public office holders may bring the requirements of the Lobbyists Registration Act to the attention of individuals who may be carrying out lobbying activities... lt is the responsibility of the lobbyist, however, to determine if registration is necessary and to comply with the law"' (emphasis in original).

Considering the lack of the knowledge of the very existence of a Lobbyists Registration Act among Tier ll lobbyists coupled with weak verification and enforcement provisions, the skeptic can be forgiven for asking what the Act has accomplished. ln an annual report, Consumer and

Corporate Affairs notes that

For the period covered by this report (Proclamation to March 31, 1990), compliance by the lobbyist community with the registration requirements of the Act appears to have been excellent. Neither the registrar nor the Royal Cana- dian Mounted Police, the principal enforcement authority for the law, has received any complaints respecting the failure to file a return or the filing of false or misleading returns. Where returns have been identified or reported as being deficient, the Registry staff have initiated appropriate action to correct tlo-- Consumer^-- and Corporate Affairs, "Annual Report for the year ended March 31, 1991," Lobbyists Registrati on AcL 171 rbid, 12-13. 101

172 the observed deficiency.

Civen the weakness of the Act's provisions and the inability to verify information, this perfect record is neither surprising or impressiv".tt' ¡ohn Chenier writes that

the fact that no one has been charged for failing to register or filing a false registration does not come as a surprise. The Lobbyists Registration Branch (LRB), where lobbyists must fíle their registrations, has no power of investigation nor does it handle complaints. The LRB is not responsible"lpr checking either the accuracy or the integrity of the lobbyists' registrations. ''"

Still, there are other problems which exist that further erode the ability of the Act to realise the objectives assigned to it. A few of the more troublesome and disturbing difficulties that remain with the lobbyist registration issue will be discussed in the next chapter, to which we now turn.

172 Consumer and Corporate Affairs, Annual Report for the year ended March 3'1, 1990, 10. 173 Since the writíng of this thesis, one case of alleged breach of the Act is being investigated by the RCMP. No details are available as the investigation is ongoing. 174 Chenier, "Lobby loopholes remain" in The Catgary Herald, Friday, September 28, 1gg0, c18. Chapter V

REVISITED . SOME REMA'NING PROBLEMS 'SSUES

ln addition to the more obvious difficulties with the Lobbyisfs Registration Act which were

introduced in the preceding chapter, this chapter examines other serious problems which

remain with the issue of lobbying despite registration requirements. lt also hints at possible

motives for introducing a registration system for lobbyists other than those which were

revealed. A review of the Act's objectives shows that it was meant to redress and hopefully

eliminate the possibility that some lobbyists were unduly influencing public policy because they were able to achieve special and privileged access to policy-makers and important infor-

mation. While performing this function, the legislation was not to erect barriers to societal

interests from gaining normal access to these same officials. If these objectives were not realised, is it possible to identify other possible objectíves? Even if there were no other objectives, are there any unforeseen effects, beneficial or not, which the legislation could have?

ln chapter 3, we discussed several important issues which were identified as needing investigation before legislating a registry system for lobbyists. Chapter 4 looked at the actual provisions contained within the final legislation, the Lobbyists Regisfraiion Act and explored some of the more obvious difficulties critics have with the Act. ln this chapter, three further problems will be identified and discussed which detract from the ability of the Act to achieve the goals which it seeks to fulfill: exemptions; informal or volunteer lobbying; and, administration.

As will be demonstrated, the seriousness of these problems along with the other shortcomings of the Act described in chapter four invite an obvious question: did the Lobbyists

Registration,Acf accomplish either of the objectives it was meant to? The Cooper Committee

-102- 103 dismissed the continuation of the status quo in the policy process, ls the lobbyists Registra- tion Act merely just an exercise in illusion which does not really alter the status quo? Some would argue thís while others fear that the Act will accomplish little in terms of its stated objectives but will simply add to an already massive amount of red tape and pup"*ork.17s

The Act can also be viewed as an attempt to manage policy communities by identifying the interest groups sponsoring an attempted influence of government policy. Policy communities, it will be recalled, are the public and private actors involved in designing and implementing the policy in a particular field. It will also be recalled that one prominent characteristic of these communities is their dynamic nature. Covernments can play a signíficant role in determining which interest groups are accorded status in policy communities and thereby dictating what role the group will play within the particular policy community. lt would be of immeasurable assistance if the government could know all the relevant actors in a policy fíeld, particularly those who employ a third-party lobbyist who are often anonymous. The Lobbyists Registration

Act will serue to identify those interests once unknown.

The idea of possible alternate motives, or unintended effects of the Act leads to a concluding segment of this chapter where possible alternate motives are given for the Act. lt may be overly dramatic to read ulterior motives into the passage of the Lobbyists Registration Act, but if such ideas did not enter into the thinking of the drafters of the Act, unforeseen and unnanounced effects will still result. Still others see it as nothing but a stamp of official legitimacy on an otherwise illegitimate practice. This argument maintains that professional lobbying will be recognized as legitimate and increasingly become the "input of choice." As the next chapter will discuss, if this is the case, serious consequences for liberal democracy may result.

175 Kohut, "Lobbyist registration just more paperwork" in The Globe and Mail, June 5, 1989,829. 104

5.1 THE EXEMPTIONS

The Act requires that individuals who lobby government for pay (eg.-as part of their job) are required to register pursuant to the Lobbyists Registration Act. As the Cooper Committee noted, eliminating unpaid lobbyists means a large number of lobbyists will not be identified. How- ever, even within this restricted definition of lobbyists, some i¡rdividuals are exempt and therefore are not requíred to register. They include such officials as are included in the term

"Covernment of Canada." Section 2(1) of the Act defines an organization as any government, other than the Government of Canada and goes on to say in Section 5(1), which defines lobbyists, that every individual who, for payment, on behalf of any person or organization

Iobbies government is a registerable lobbyist. Lobbyists employed by the Covernment of Can- ada, whoever this includes, need not register.

Undoubtedly this exemption was taken largely to satisfy those federal politicians who were alarmed that registration might apply to themselves and their employees. Civen the inside lobby of the Senate (described in chapter 3) and the bargaining between Cabinet Minis- ters, it is questionable whether the lobbying activities of all federal politicians should be exempt. Perrin Beatty, the Minister of National Defense, and his use of Armed Forces personnel to indirectly lobby for nuclear submarines reinforces this doubt. Arguably, there are negotiations within government that need not be open to public scrutiny. However, if the goal of registration was to make the public aware of who is influencing policy developments, surely this aim will not be realised if all federal government employees, as well as government representatives, are exempt from registration.

Other exemptions include provincial government legislators and their employees, Iocal government officials, lndian band councillors, representatives of foreign governments or international agencies like the United Nations, federal appointees (other than Judges), and army and police employees. Recall, however, that the exemptions apply only if these individuals are acting in their official capacity. For some exempt individuals, it is rather obvious if one is per- 105

forming a duty which is part of the job, but others, especially representatives of foreign gov-

ernments, which includes ambassadors, are theoretically on-the-job 24 hours a day. Many

Ottawa social gatherings are staged to enable these diplomats to lobby Canadian decision-

makers and Canadian business also lobbies these diplomats. Even though these foreign representatives are exerting a tremendous amount of influence on Canadian policy, they are not required to register. While it would be advisable to monitor the lobbying that takes place at these social functions as a good deal of publíc policy is shaped at these affairs, the simple registration of these diplomats as Tier ll lobbyists would not suffice. The subject matter of "dinner party discussions" which is actually discreet lobbying and contacts would need to be revealed.

As a spokesperson for Consumer and Corporate Affairs points out, "the names of foreign diplomats are readily obtainable from public listings."l76 lt is not so much a question of the need for their identities to be revealed but if the public is to know who is influencing policy, the matters which these representatives are influencing needs to be revealed. Simply exempting foreign Bovernments' representatives is a rather perplexing mea.sure if the Act was meant to inform the public about who was influencing policy.

One of the more notable occurrences in the last 50 years has been the increasing interde- pendency of national economies. This pattern has led to national policy-making which must consider international realities. Andrew Collner makes the point that international concerns and domestic socio-political circumstances are an important part of external issues with which governments are forced to deal. Collner refers to this phenomenon as the "crowding in of externalities."lTT Close consultation with foreign governments on a continual basis has become unavoidable. The days when Ottawa, Washington, or any other national government could make policy, even domestic policy, without considering international exigencies are no more, A perfect example of this is in the agricultural sector. Canada must consider its foreign

:=------tlo Corinne Maclaurin, Consumer and Corporate Affairs, Registrar, Lobbyists Registration Branch, personal communication, May 2, 1991 .

177 Gollner, "Managing Public Affairs" in Public Affairs, Autumn, 1984, 29-33. 106 competitors, especially those in the US and the European Community, before establishing its own internal agricultural policies. This point is emphasized by considering that Canada is far more dependent on international happenings than most other developed countries. The open and small market in Canada underscores the need to consíder international events. To exempt foreign representatives from public scrutiny, even when they are acting in an "official" capacity, and then claim to be informing the public of whom is influencing what policy is, at best, not very convincing. lf policy is being formed in close consultation with these foreign government officials, is it not logical that Canadíans should have some knowledge of not simply the names of these officials, but what members of government they have lobbied and what issues were discussed; at least let the public's representatives know this. Foreign representatives are/ after all, only representatives. Surely, there are unknown foreign interests pressuring these representatives. If Canadians cannot know the identity of these foreign interests, they should be aware of the activities of their representatives. The claim that the Canadian public can know who is influencing policy is merely a sham if foreign representatives are not required to either identify themselves and their employees and, more importantly, their lobbying activities.

Prime Minister Mulroney pointed out the importance of foreign lobbies in his address to

Parliament concerning his Covernment's commitment to introduce lobbying legislation. He claimed that a lobbyists registry

would enable persons who are approached by lobbyists for Canadian corporations, associations and unions, and by agents on behalf of foreign governments and otþgir foreign interests, to be clearly aware of who is behind the representation''o lemphasis mine).

The Standing Committee which examined the idea of legislating a lobbyists' registry was con- vínced that it was not necessary for foreign lobbyists to register to achieve an informed public.

This is one area where the Cooper Committee and the Lobbyists Registration Ácú did reach similar conclusions. However, the increasing internationalization of economies and the amount of discreet and informal lobbying in which foreign representatives engage question the wis-

1r8 - Consumer^-- and Corporate Affairs, Lobbying and the registration of paid lobbyists: a discussion paper, 1 985, Preface. 107 dom of exempting representatives of foreign governments if Canadians are to be aware of those influencing public policy.

Consumer and Corporate Affairs was also concerned w¡th lobbying by foreign representatives. This Department raised the possibility of designing a registry which would include "those who lobby on behalf of foreign governments and agencies thereof, or foreign corporations or individuals."lTe At the same time, the possibility of the sensitive nature of some information from foreign governments was recognized. A separate registry was sugtested as a possibility which could realise both the existence of sensitive information and the right of Canadians to know who was influencing which government decisions. This type of a registry would be similar to what operates in Australia. Their system is separated into two "tiers," but not in the same way that Canadian legislation is. They recognize the importance of foreign governments' lobbying and the input it can have on domestic, as well as foreign policy and devised a system that requires foreign representatives, governmental or not, to register in a separate registry that is not made available for public scrutiny.180 However, foreign lobbyists were simply exempted.

Of course this is only a partial solution, since the objective of informing the general public of who is influencing policy is not realised. The content of this foreign registry is for author- ized eyes only, usually government officials who are forming legislation in the relevant area.

The Australian foreign lobbyists register is available to public office-holders, so at least the people who are making the decisions are aware of who is behind a foreign lobbying campaign. This system is established as a compromise on the issue of the need to keep certain information about foreign governments confidential and the need to inform the public (or, in this case, the public's representatives).

179 Ibid, 21.

tbid. 108

The Lobbyist Registration Act also states that provincial politicians and their staffs, when acting in their official capacities, are exempt. Thís exemption also makes the provision of informing the public suspect. This is especially so with the federated interest Broups in Cana- da. Federated groups are those who lobby both provincial and federal governments, depending on the issue. Knowing that provincial officials are exempt, and knowing that no lobbying registration requirements are in place for lobbying which occurs at a provincial level, what would prevent a group, r¡,hich desired to remain anonymous, from intensively lobbying a provincial government on a certain issue? Should the provincial government be convinced by the lobbying of provincial interests, the provincial government would likely serve as a de facto lobbyist for that interest when the matter was being negotiated with the federal government.

This scenario would not be as dangerous if federal/províncial jurisdiction was not so mud- died. The number of issues that are jointly managed by the two levels of government are quite numerous. Civen the present level of constitutional negotiations in this country, it is unlikely that this area of joint responsibility between provinces and Ottawa is going to become any clearer in the immediate future. Would it not be reasonable to require information of some kind from provincial government representatives when they are negotiating with the federal government? How is the public, or even public office-holders, to know what interests are represented by provincial government officials? lt need not even be interests within the same province that have lobbied these provincial representatives. While the argument is made that provincial MLA's and MNA's are elected and therefore accountable to the public and their lobbying activities need not be known, their employees are not. The importance of provincial bureaucracies as policy-makers is not very much different from that of the federal bureaucracy.

In chapter 2, it was noted that the federal Cabinet was criticized for having lost control of its civil seruice staff. The same critícism can be leveled at provincial executives.

Sheila Copps, Liberal M.P., spoke of the absence of provincial lobbying regulations, loose conflict of interest guidelines and uneven and weak freedom of information legislation at the 109

Ievel of provincial government and pointed to the problem this created. The Lobbyists Regls-

tration Acf is only applicable to lobbying at the federal leuellBl while actual lobbying activiÇ flourishes in some provinces. From former Premier Buchanan's flat denial that Nova Scotia has any paid lobbyists, despite overwhelming evidence to the contrary182 to the flurry of lobbying activity in Ontario,183 uu.h province seems unique. But there is a universal need for compan- ion provincial legislation to enhance the effectiveness of the federal legislation.

The issue of exempting provincial representatives and the likliehood of increased lobbying at the provincial level is made worse when an íssue raised by Hugh Thorburn is considered. He maintains that there is a great need and public demand for better coordination between federal and provincial governments to reduce or avoid duplication of duties and overlap of seruices and general conflict in federal-provincial relations.l84 The Lobbyists Registration Act, through indirect encouragement of lobbying at the provincial level does nothing to promote this much needed integration between the levels of government. lndeed, it is not difficult to envision the federal-provincial problem being compounded by the Act. Mclnnes' meaning (see Preface) again takes on increased importance. An undesirable effect of the Lobbyists Registration Act may be to inadvertently increase federal-provincial tensions and encourage centrifugal federal- ism by causing interest group representations to be increasingly made at the provincial level.

This is especially true for resource based industries, where provinces have jurisdíction. Thor- burn notes this tension and problem for unity which provincial lobbying often presents:

...links between particular interests and one or the other level of government. As the groups seek their advantage, sometimes their activities contribute to the decentralization of Canada; and regional capital and foreign-controlled capital sometimes move to support the provincial governments in confrontation with the federal governnment, or (at times) vice versa. Since natural

ñt--i"r"-ons Debates, March B, 1988, 13530. 182 Ward and Underhill, "No paid lobbyists in province - Buchanan" in lhe Halifax Chroni- cle Herald, August 2, 1990, A3. 183 Montgomery, "NDP good business for consulting firms" in The Gtobe and Mail, Sep- tember 24,1990, A1. 184 Thorburn, lnterest Croups in the Federal System,1985, xviii, 1,19-20. 110

resources are vested in the Crown in right of the provinces, the driving force in this area tends to be provincial, and regionally based business interests in collaboration with provincial governments can develop alliances that adversely affect pan-Canadian interests. This virtually inevitable tension... '"'"gnay

Pross stresses this worrisome pattern of regional concerns using provincial governments as

lobbyists and emphasizes the strain this imposes upon national unity. He notes that the Marí-

time governments routinely lobby the federal government on behalf of business interests

located in their jurisdictions.ls6 Legislation which encourages lobbying of provincial govern-

ments may unintentionally exacerbate this tensíon.

The other federal countries that have a system for registering lobbyists have a similiar

problem and they have developed, again, a system that partíally resolves it. ln the United

States, individual states have, only in a few instances, developed their own registration system which partially alleviates the difficulty. Devising a lobbyists' registration system which would inform Canadians of whom is influencing public policy is difficult and complex. The problem is not really in identifying these provincial representatives, as this is usually obvious, but in discovering the issues which they are discussing and who has lobbied them. The current Lobb- yists Registration Act would not accomplish that.

The difficulÇ and complexity of a problem do not excuse legislators from attempting to deal with it. Perhaps some sort of lobbyists' registration scheme at the provincial level would effectively overcome this difficulÇ. David Peterson, former premier of Ontario, suggested a system of registration in 1986,ttt but since his election defeat, the new Ontario government has not resurrected the idea. An informed public will not result from the exemption of provin- cíal officials.

tbid,24.

Pross, Group Politics and Public Policy,1986, 166.

187 Harrington, "Province may curb lobbyists" in The Toronto Star, October 30, 1986, 48. 111

Two important possibilities should be discussed concerning the exemption of provincial

officials. Firstly, this possible tendency to lobby provincial governments with greater tenaciÇ

favours those groups whích are able to maintain a lobbying effort at both levels of govern-

rn"nt.1BB Alternatively, interest Broups may choose to largely abandon lobbying at the national

level and opt to apply maximum pressure on provincial governments, at least in those areas in which the provinces are accorded some jurisdiction. This would further decentralization and

balkanization.

The other exemptions are fraught wíth similiar problems with creating an informed public,

However, these problems are not as serious since the other exempt officials are not as

involved with policy-making as are provincial offícials and foreign governments. Still, though, the tendency to involve the ìepresentatives of status lndíans in the polícy-makint process would signify that this exemption is another area which warrants further analysis. As well, the proclivity of provincial and federal governments to share responsibility with municipal governments cautions us to examine the wisdom of exempting municipal councillors and their employees. As necessary as it may be to exempt some lobbyists from registration, they are still lobbyists and influence government decisions. lf the aim was to create a transparent decision- making system, which it was, then this objective is undermined in relation to the number of lobbyists who are excused from registering.

188 Thorburn comments on this phenomenon and notes that these groups with federated structures tend to be those with superior resources and organizational capacity (Thor- burn, 1985, 53-68). These qualitíes are not synonymous with true representativeness. 112

5.2 VOLUNTARY AND INFORMAL TOBBYING

This is an issue which perplexed the drafters of the Lobbyists Registration Act and basically involves the issues of who qualifies as a lobbyist and what is considered to be lobbying. Con- sumer and Corporate Affairs and the other departments and Committees which studied the issue decided that it was best if only those lobbyists who were paid for certain work were required to register. The meaning of payment was given a very broad defínition, but, nonetheless, it was necessary to prove that there was some form of payment before a lobbyist was required to register.

Despite the broad definition given to payment, no information would be requíred concerning the extent of payments which .went into any specific campaign. While the public would perhaps know who was attempting to influence policy, and to an extent, how, they would not be able to judge how important the policy issue was to the party exercising the influence. How much money was the party willing to spend to get their way on a certain issue? lnstitutional groups, already advantaged by their stable position in policy communities, are further advantaged by not having to disclose any financial information. These groups have much more extensive resources to use and can lobby much longer and harder than most other interests. Using their superior position and resources on a lobbying effort may be considered unfair. Fair and equal access and informing the public would both be jeopardized by the exclusion of reporting any financial information. Cyril Keeper of the NDP commented on this issue. He said, "Why bother with seeking to create something called a registry for lobbyists if it is not going to provide the kind of information that is necessary if we are to control the activities of lobbyists."189 ln defense of the legislation in the area of fee disclosure, Mrs. Lise

Bourgault, Parliamentary Secretary to the Minister of Consumer and Corporate Affairs, claimed that such requirements would not just be of little use, but "would create what we call an administrative nightmar"."190 However, in Sacramento, California, the witnesses that testified

Commons Debates, July 25, 1988,17929.

lbid, July 15, 1988, 17622. 113 before the Cooper Committee maintained that California's lobbyist registration requirements were very comprehensive and that the system was administered very effectively out of a very small office.te' Th" administration of California's Act, whích demands considerably more information from its lobbyists, does not appear to be a nightmare. The California office, which deals with thousands of very detailed files, functions quite well with a very limited staff.

After witnessing the loose regulations of Washington, the committee travelled to Sacramento and got a look at possibly the strictest lobbying law in the world. California's Political Reform Aci compelled lobbyists and employers to file certifications, registrations and reports with the secretary of state and to account for every expenditure over ten dollars...lf Washington covered too little, California, perhaps, went the other extreme. Every lunch and every meeting had to be reported.'""to

Much of the previous and subsequent analysis of the Lobbyists Registration Acú is based on the assumption that interests would have an íncentive to actively avoid registration. Some may question this assumption so it is incumbent that evidence be put forward that substantiates such an assumption. The scandalous history of lobbying has caused the whole exercise of pressure politics and lobbying to be viewed with suspicion and even hostíliÇ. Aside from the negative feeling that the public has concerning pressure politics and lobbying, which ought to be reason enough to maintain that groups would choose to avoid being registered as members of the pressure group community, there are other considerations.

We have already alluded to the ídea that the prevailing political culture militates against government interuention, at least in the business community. Schattschneider offers one explanation for this dominant anti-government position.t93 He maintains that it is in the best interests of business interests, which compose nearly half of all organized pressure groups, to keep conflicts out of the public domain. Schattschneider even Boes so far as to say that

(t)he system of free prívate business enterprise is not merely a system of private ownership of property; it depends even more for its survival on the privacy of information about business transactions. lt is probably true that the busi-

Sawatsky, The Insiders, 1987, 330-1.

192 tbid, 330.

193 Schattschneider, The semisovereign people, 1960, 40-45. 114

ness system could not suÌvive a full public disclosure of its internal transactions, because publicity would lead to the discovery and development of so many conflicts that large-scale public interuention would be inescapable.'--

The superior position of many business interests means that they would prefer to maintain their relative advantage in the policy community by keeping the public and government as much out of the picture as possible. Thorburn adds credibility to this thesis by pointing out that the tradition in the Canadian polity has been to develop policy in a "closed and secretive" atmosphere.tes Thi, tradition of closed and secretíve policy-making contributed to elite governance or consociatíonal democracy discussed in Chapter 2. This position can be seen in the reluctance of organized interest groups (many of which represent a business concern) to opt for media coverage and open public debate on an issue. The desire to not alienate those officials with whom the organizational interest group will eventually deal again is only part of the picture.

Hugh Thorburn also illustrates another possible reason why interest groups may avoid registration. He notes that interest Broups, especially those located in western Canada, are not predisposed to cooperation with their competitors.le6 Registration, especially as clients of a

Tier I lobbyist, would mean that information on their interests and some operational data would be available to the competition. lf lobbying is inevitable, it may very well be that Tier I lobbyists will increasingly become less popular and perhaps the limited reporting requirements of Tier ll lobbyists will have to be reconsidered. The limited information required of Tier ll lobbyists may make them more popular as they can still be as effective as Tier I lobbyists are, but do not have to reveal an¡ruhere near the same information.

ß4 tbid, 12.

195 Thorburn, lnterest Groups in the Canadian Federal System,19B5, B.

196 rb¡d, 54. 115

There is ample evidence which suggests that interest groups may seek to avoid registration but it remains to be documented whether or not this is actually the case. Intuitively, it may be enough simply to suggest that if strong enough íncentíves exist to make avoidance of publicity desirable, one can be certain that there will exist individuals who will seize the opportunity and try to avoid public scrutiny. However, there is evidence that this impulse is acted upon, on a regular basis.le7 We have already mentioned the lobbying of the Senators and the influence these M.P.'s have on legislation, especially financíal legislation, through the Banking

Committee. However, what is not obvious is the degree of personal connections these Sena- tors have with businessmen and women. lf a Senator and his golf partner happen to discuss an important financial matter in the clubhouse, who is to know of this conversation and any commitment that might result from it? lf social events are "staged" and really serue as a venue for intense but discreet lobbying, the Canadian public will not know what deals are made or what influence is brought to bear on what policy by whom if all this informal lobbying remains secretive.

And then there is the ambiguous voluntary lobbying. Certainly, there is a good deal of unpaid lobbying which is legitimate and straightforward for which no public record, no public scrutiny is required. By and large, such unpaid lobbying is undertaken by groups that would not be classified as special interest groups. The majority of this type of lobbying involves some aspect of a public interest and this type of lobbying was not the principal target of the Lobb- yists Registration Act. Mulroney had made it quite clear that the principal 'benefactors' of a registry were to be third-party, paid lobbyist who are often referred to as professional lobbyists.

1e7 ln addition to intuition which suggests that registration would tend to be avoided if it was beneficial, and the recognition by government given to groups which avoid publicity is one reason why public registration might be avoided, numerous sources within one sector of the Canadian economy volunteered that they would seek to avoid registration. lf there was no choice, effort would be expended to ensure that as little information as possible would be revealed. Preferably, the firm could hire an in-house or Tier ll lobbyist. 116

However, the problem lies with the incentive to remain out of the public light. Simply put, if the reward is significant enough to induce someone to avoid registration, and it is quite easy to imagine that any reward could easily be that, then it is quite likely that an overwhelming aversion to registration will develop. lf the aversion is strong enough, a willing accomplice among the ranks of professional lobbyists is likely to be found who will sympathize with the afflicted and províde lobbying se¡vices where nothing of value can be proven to have been exchanged.

5.3 ADMINISTRATIVE SIMPLICITY

The Lobbyists Registration Act was meant to be constructed in such a way that the information required of those registering would not be too demanding. The requirements of registration were to be such that the bulk of societal interests would not be, or even feel, overwhelmed by the requirements to regist"r.t9t Th" public was in no way to be deterred from making input via lobbying into public decisions. From the foregoing analysis and the Act itself, it is evident that there should be little difficulty in meeting the requirement that registry information requirements be kept as simple as possible.

However, even with this issue, there are problems with the Act. Tier I lobbyists complain that they are required to report every subsidiary of the clienUemployer. How practicable is such a requirement, especially when the onus is on the Tier I lobbyist to uncover who these subsidiaríes are, regardless of the client's position? Many large corporations are unaware of all their subsidiaries and there is nothing to force them to give this information to a Tier I lobbyist. Of course, as we have noted, Tier ll lobbyists do not have to file such information as the public will be aware for whom the Tier ll lobbyist is lobbying. Consumer and Corporate Affairs maintained that they would attach a note on the Tier I lobbyist's registration if they were not able to reveal their clients' subsidiaries. How this would inform the public was not

Consumer and Corporate Affairs, Speech, Noúes for Remarks by Harvie Andre, Minister of Consumer and Corporate Affairs to Press Conference on Lobbying Legislation, June 30, 1987, 2. 117 explained.lse

One of the principal goals of the Lobbyists Registration Acf was that it should be obvious if an individual would be required to register. The registration requirements were to be so simple and straight-forward that it would be evident if one was to register and whether or not this registration should be as a Tier I or ll lobbyist. This was not realised. Though few Tier I lobbyists seemed to have much doubt as to whether or not they had to register, this was not the case for Tier ll lobbyists.

Firstly, we must view the ignorance of potential Tier ll lobbyists of the very existence of the Act as a significant indicator that they would not know of their obligation to register. Near- ly half of all Tier ll lobbyists contacted by this author were unaware that there was something called the Lobbyists Registration Act. One-third were vaguely aware of the Act's existence but were not clear about its contents while only about 20% declared that they were quite familiar with the Act and its requirements. (See Table 4.2 for the level of knowledge about the Act.)

Secondly, the vague wording of the Act, "significant time" and "as soon as practicable" invite serious confusion among those who know of the Act's existence. Finally, information from

Consumer and Corporate Affairs shows that less than half of the estimated number of registerable Tier ll lobbyists had actually registered in the first year of the Act.200

It should be mentioned that many critics of the Act see the biggest problem with administration not to be one of demanding too much information. Their problem with administration is that the Act does not require sufficient information as to realize its other objective, that of informing the public. Harvie Andre defended the Act as saying that he believed it had achieved a good balance between the difficult issues of informing the public without demanding so much information that access for legitimate lobbyists would be hindered and a massive

;;----- Mrs. Corínne Maclaurín, Consumer and Corporate Affairs, Lobbyist Registration Branch, personal correspondence, May 2, 1991.

200 Consumer and Corporate Affairs, Lobbyists Registration Branch, Annual Report, 1990,7. 118

bureaucracy would need to be created to administer the Act.201 The balance achieved erred

on the side of liberality. lt must be admitted, though, that as far as creating a barrier to legiti-

mate input from societal interests, the Act was substantially more successful than it was in

informing the public and its representatives about those who were influencing policy.

All registration information is reported to a branch of Consumer and Corporate Affairs in

Hull, Quebec. The creation of this office seemed logical as the registry would be admínistered

by the government department which created it. Even the Cooper Committee gave this little thought as it was assumed that Consumer and Corporate Affairs would be the logical home for the registry. However, between the filing of the Cooper Report and the introduction of

Bill C-82, the government announced the creation of an Ethics Commissioner who was to be an independent officer of Parlíament, something akin to the Speaker or the lnformation, Priva- cy and Language Commissioners. The office of this ethics commissioner was to have nothing to do with the Lobbyists Registration Acic lt was to oversee the affairs of M.P.'s to ensure that all Members were operating in accordance with Conflict of lnterest guidelines and other such legislation. However, even though this office was not anticipated when the Cooper Commit- tee issued its Report, Boudria and Rodriguez felt that this officer would be more appropriate to administer the Act. The nature of improper lobbying could involve a conflict of interest if housed with a department of government. lf lobbying of a particular government department was suspect, as this lobbying was thought to be conducted improperly, it would not be appropriate to have the Act governing lobbyists' registration located with another branch of

Bovernment. There might be the temptation to overlook registration requirements in such a case.

zoì Consumer and Corporate Affairs, Speech, Notes for Remarks by Harvie Andre to the Legislative Committee, April 12, 1988,2-3. 119

5.4 ALTERNATIVE RATIONATES

The Lobbyists Registration Act was intended to allow the Canadian public to observe the functioning of the policy-making process; to obserue who was ínfluencing government decisions.

When the public saw that decisions were made fairly and that no individual or group was able to exeft undue influence on decision-makers through illegitimate and improper tactics (like the use of friendships to gain access), public confidence in the legitimacy of public decision-making would increase. Access for legitimate interests was also not to be hindered. However, the past two chapters have described the numerous flaws and omissions which cast doubt on the ability of the Lobbyists Registration Act to achieve the goals for which ít was intended. Policy- making will certainly not be transparent. fu well, though appropriate data are either not yet available or difficult to obtain, it is possible to argue that access to decision-makers will indeed suffer; it is safe to say that accessibility will be no better than it was prior to the Lobbyists Reg- istration Act. ln any event, if the problem was special access based on personal acquaintances and privileged informatíon, then not correcting this situation will be maintaining the status quo whereby certain interests are able to see the appropriate decision-makers whíle others are not.

lf the Act does not succeed in accomplishing the goals of transparency and does not provide free and open access to decision-makers, are there other reasons which could have inspired the legislation? As it is unlikely to get admissions of ulterior motives from reliable government spokespeople, it is necessary to rely on informed and logical speculation. Since this speculation is based on reason and logic and not ideology or partisanship, it should not be discounted and dismissed.

lf the political situation at the time of the Prime Minister's commitment is considered, it is clear that the government had to be seen as doing something about the accusations and out- breaks of scandal and immorality that were being levelled at the Conservative government. ln the 1984 federal election campaign, it will be remembered that Mulroney capitalized on the 120

"sleeze and pork-barreling image" which the public had of the Liberal Party. If the Free Trade

Agreementwas the issue in the 1988 election, whích it clearlywas, then patronage and public sector largesse and corruption was the issue of the 1984 federal election.

Mulroney was swept into power in 1984 on the strength of his perceived anti-corruption commitment. However, the first months of his mandate were filled with scandals and endless rumours of corruption of the same manner as practised by the Liberal regime he had replaced.

Mulroney was under intense pressure to live up to the image of the foe of patronage and corruption which had preceded his electoral victory.

As a result, Canadians were benefactors of a package of sweeping reforms in the area of public sector ethícs. ln this package came a commitment to introduce lobbying legislation.

Even professional lobbyists could not change Mulroney's intention.20t Mrlron"y had promised to "clean-up" government and needed to be seen as doing something to address the issue. Even if the measures were largely ineffective, something had to be ímplemented. lf nothing else, political considerations dictated the following through of this promise. Reversing a public commitment to register lobbyists would not enhance the 'anti-sleaze' image which seemed to have played such alarge factorin the 1984 election of a Conseruative government.

The ease of avoiding registration and undermining the stated objectives of registration raises the question of how much importance the government assigned to making the policy process transparent and guaranteeing free and open access to all of society's interests.

Schattschneider develops a notion of controlling the level of conflict which may be crucial to understanding one possible motive for registration.2o3 lt may not have been pre-medi- tated that a Lobbyists Registration Act could help governments control conflict, and that the legislation was drafted with this idea in mind, but the effect, even though not intentional will still exist. Recall that one of the concerns of the business community referred to in chapter

Sawatsky, The lnsiders, 1987, 1-9.

Schattschne ider, The semisovereign People, 1960, 2-16. 121 three was over the idea that the privacy of business transactions is crucial to liberal free market business enterprise. Business strives to keep its affairs out of the public sphere. By forcing the bulk of business concerns to reveal data about their operations, government would be stating that secretive policy-making would no longer be permissible. Schattschneider, writing before any rumbling about lobbying or registration in Canada, states that "government thrives on conf lict. "2o4

Streek and Schmitter speak of the benefit that associations or interest groups can supply to social ord"r.205 However, they too subscribe to the notion that business dealings must be kept private. Further, they see the revelation of interests' concerns as detrimental to any enhancement of social order that associations or interest groups -"k".'06 Since governments thrive on conflict but business interests prefer to operate in relative obscurity, it would be logical for government to devise a system where conflict would be maximized.

A slight variation on this idea of controlling the conflict and consensus over policy-making is noted by Paul Pross. He hints at a possible effect of registration and seems to hint that there may have been some idea of controlling policy communites in the "back of government's mind." The information elicited by a registration scheme "might even lead to direct negotiations between officials and interests, and so eliminate 'middle rnun'."207 This idea takes the notion of controlling the level of conflict to new heights. Covernment would be able to identify the societal concerns which were behind various lobbying campaigns and would then be able to manage these interests accordingly.

204 tbid, 13.

205 Streek and Schmitter, eds., Private lnterest Covernment: Beyond Market and State, 1985,1-14.

tbid, 1 1.

Pross, Croup Politics and Public Policy, 1986,263. 122

Coleman and Skogstad note that "perceptions of autonomy vis-a-vis societal interests are important in determining state strength."208 Earlier, it was mentioned that bureaucrats are often able to determine which societal Broups will be represented in a policy community. This ability is qualified but the ability of the state, especially in conjunction with established, institutional actors in policy communities, to choose the actors of a particular policy community is fundamental to state autonomy and, as noted, state autonomy is necessary, although not sufficient, to determining state strength. One of the first problems facing the state if desiring autonomy in a policy area which might enable it to design policy more easily, is to know who the relevant interests are. Prior to forcing these concerns to identífy themselves, government could not begin any kind of effective management of the policy community even if ít had wanted to.

There are numerous possible alternative rationales for the registration of paid lobbyists.

Many are related to the idea of controlling conflict and managing policy communities. Such an obvious idea as this would seem to favour the government inflicting severe legislation with strict repofting requirements. That the Lobbyists Registration Act did not do this suggests that the government was likely successfully persuaded not to invoke effective legislation. The effect of the Act may be ultimately "beneficial" in that it seems to have done little to alter the status quo. The effect may be beneficial only for those interests anxious to remain in the "half-light of politics" and unknown to the general public. The only significant issue on which the Act did pronounce was to claim that lobbying is a legitimate activiÇ. This is an issue we will discuss in the next chapter after offering some definitive conclusions.

208 Coleman and Skogstad, Policy Communities and Publìc Policy, 1gg0, 6. Chapter Vl

coNc¿usroNs

The Lobbyists Registration Act was implemented as the means of restoring public faith in the

legitimacy of policy-making. The negative perception that the public had of the manner in

which policy was made was not totally unjustified. Historic and even contemporary scandals

involving lobbying were well documented and led to public skepticism about the legítimacy

and fairness of lobbying and the policy which resulted. At the same time, it must be remem-

bered that lobbying was becoming increasingly important as the method whereby the public was to achieve input into policy development. The Lobbyists Registration Act was to open up

policy-making to public scrutiny and thereby inform the public and public offíce-holders of who was influencing íncreasingly important government decisions. Increased public knowledge of those affecting legislation and policy direction would not only conform to democratic ideals, but would restore faith in the legitimacy of policy and thereby secure voluntary compliance with government legislation. lt was held that the identification of policy influencers (lobbyists and their clients) would achieve this.

However, it is even doubtful that the simple identification of lobbyists and their clients would result in the knowledge of who was, and to what extent, influencing the course of policy and content of legislation. The practice of informal and volunteer lobbying, the exclusion of requiring any financial information from lobbyists, the exemption of the Act's applicabiliÇ to foreign and provincial governments, investigatory impotence and other problems obserued with the Act and the basic principle of informing the public is severely undermined. It would appear a bit naive to believe that the Lobbyists Registration Acú will either enhance democracy in Canada or increase the legitimacy of policy and voluntary compliance with laws through acceptance of legislation which might have resulted from an informed public.

-123- 124

As pessimistic as one might be about the principal objective of the Lobbyists Registration

Act, there was another goal to be achieved with this legislation. lt was declared that the lobbying of public officials by societal interest groups was a legitimate activity. Achieving public input into public policy this way was construed as desirable. lt was therefore incumbent that any registration scheme be carefully constructed so as not to obstruct access to policy-makers and thereby impair legitimate Iobbying. By failing to control the alleged privileged and secretive nature of government decision-making, the Act also fails to guarantee free and open access to many of society's interests.

ln this respect, it is not difficult to conceive of the Act as being asked to perform conflict- ing tasks. Was it even possible that the objectives could have been attained? Stringent controls and detailed information which may have à-àcomplislred the goal of informing the public of which interests sought to influence polícy would very likely have hindered the access needed for legítimate lobbyíng. Conversely, an emphasis on not impairíng access would likely detract from the other objective. ln a sense, it was very much an 'either or' scenario. Certainly, this was a frustrating dilemma.

The largely negative response from many groups suggests that the Act did nothing to enhance necessary access for less well-endowed interest groups. This is not surprising since the Act was not really intended to improve access. However, it is both possible and logical that the Act may have inadvertently obstructed the lobbying efforts of some interests by threatening an indívidual's right to privacy and thereby dissuading the individual from lobbying.

The unfortunate aspect in this is that some of the interests which may have been discouraged from lobbying would be more representative of their sector. They could have the numbers to be representative (i.e. be legitimate), but either lack the resources to complete registry work and lobby effectively in addition to retaining a liberal phílosophical bias which would cause them to avoid engaging in lobbyíng activiÇ which would require them to register. 125

For example, poor people's groups, environmentalists and other minorities are under-represented in the policy-making arena because their low level of resources renders them unable to compete effectively with those Broups with more substantial resources. Rather than address this problem, the Act is silent about this issue. It would have been preferable if legislative effort in the field of lobbying had addressed the problem of unequal access among many competing interest groups rather than maintaining the status quo. The status quo is simply unacceptable.

Piven and Cloward note that often the inability to gain access and the accompanying feeling of powerlessness often leads lower class interests (with inferior resources) to confrontation, protest and even civil disobedience.2oe R.D. Crelinsten links the inability of marginalized groups to gain access with acts of terrorism which come to replace more peaceful lobbying tactics with such groups. Often groups which employ terror tactics or other unacceptable and anti-social communication tactics are endowed with inferior resources which make such unacceptable forms of communication as violence become the only alternative.2l0 Protest, disobedience and political violence are largely ineffective methods of influencing public policy. lncreased access for groups without the resources to cultivate acceptable access on their own should be the fo.ur.2tt How this is to be achieved needs additional research and delibera- tion.

209 Piven and Cloward, Poor People's Movements, 1977, 264-359, conducted an examination of the Welfare Rights Movement in the United States in the 1970s and noted the propensiÇ of the participants in this movement to resort to riots, violence and other acts of civil disobedience. The individuals in this movement perceived that more peaceful and traditional modes of communication were mostly ineffective.

210 See R.D, Crelinsten, "Terrorism as political communication: the relationship between the controller and the controlled" in Paul Wilkinson and A.M. Stewart, eds., Contempo- rary Research on Terrorism, 1987, 6-9.

211 Thompson and Stanbury, lnstitute for Research on Publíc Policy, Occasional Paper No. 9, Th.e Political Economy of Interest Groups in the Legislative Process in Canada, 1977, 7.(O¡ course, this does not deny the existence of groups with goals incompatible with societal norms who use violence as theÍr preferred vehicle of political communication. lmproved access for such terrorist Broups is not advocated. What should perhaps be addressed is why some of these groups choose to use violence and terrorism over more acceptable methods.) 126

Public funds being made available only partially mitigates the problem. This solution may

help groups achieve better access and prepare more credible and thorough briefs, but it does not guarantee fair consideration of these groups' views. As well, there is the thorny question of whether, or to what extent, does government funding affect the autonomy of those interests which are largely dependent on this funding for their very existence. Will the views on the issues be affected by this dependence on government money? lt is questionable whether any organization, even government, rvill continually fund a group that consistently opposes the policies of the sponsoring agency.

A good example of this problem is witnessed by the displeasure of the Consumers Asso- ciation of Canada (CAC) with the president of its Manitoba chapter. The Manitoba chapter conducted an informal surey of pricing patterns after the introduction of the Coods and Ser- ivices Tax (CST). The government had maintained that prices would generally be lower or stay the same on the vast majority of goods and the survey, which was readily admitted as not being 100% accurate, found that most goods and services had actually increased ín price. The national office of the CAC, which happens to receive significant financial support from the same government that instituted the GST, subsequently asked for the resignation of the president of the Manitoba chapter. This does not necessarily mean that the national office was simply doing the bidding of the government in attempting to muzzle critics of the CST, but it is worthwhile to query whether government funding had any bearing on the national office of the CAC asking for this resignation?212

The issue of unequal access ís more important than ever now that the Mulroney Covern- ment has entrenched and legitimized a process of effecting public input ínto policy-making via lobbying. Lobbying was once widely perceived as illegitimate and corrupt as the unequal resources and consequent unequal access of some interests effectively barred a large segment of the polity from achieving input into polícy-making. An already crowded political agenda is nl McNeill, "CST pricing study sparks call for head of consumer group to resign" in Winni- peg Free Press, May 26,1991,4. 127 unlikely to attract further debate on the issue of lobbying as the Covernment will maintain that

the Lobbyists Registration Act dealt with the issue.213 the public debate over the Lobbyist

Registration Acf was not very substantive in the fall of 19BB when it was passed, and the issue will not likely surface again for a very long time. Throughout the legislative process which Bill

C-82 began with its introduction into Parliament, the Minister of Consumer and Corporate

Affairs was "quite prepared to consider any technical improvements to the lobbying proposals, provided they don't alter the basíc thrust of the bill"214 (emphasis mine).

Section 14 of the Act calls for a three year review of its operation and administration, but this should not be taken as a process in which skeptics may place hope. ln speaking with a member of Consumer and Corporate Affairs, it seems very unlíkely that anything outside the operation and administration of the Act will be discussed. The individual provisions of the Act, such as the exemptions, the information required, the definition of lobbying may be reviewed, but no discussion of the entire issue of the legitimacy of lobbying is likely to be desired or ,, .215 allowecl.

Paul Pross, one prominent commentator on Canadian interest groups, conceded that the

Lobbyist Registration Act

(d)espite its weaknesses...... marks a step toward introducing some order into a chaotic and often murþ aspect of public policy making. It helps to identify and document a form of politi,c"ql activity that, sometimes justifiablely, sometimes not, has caused concern.-'"

213 This attitude is evidenced with the manner in which the Act was rushed through Parlia- ment after the initial Committee hearings before the introduction of a formal Bill. A Member of Parliament commented that "unsavory issues are usually speedily dealt with in the House ... perhaps this is similar to the adage 'out of sight, out of mind.' There is little substantive debate over a delicate issue like lobbying. When I raised the issue of how public input was to be achieved, no one responded and I got the feeling that no one even really understood what I was talking about" (personal communication with Bill Blaikie, February 2, 1991).

214 Consumer and Corporate Affairs, Speech, Nofes for Remarks by the Honourable Harvie Andre, Minister of Consumer and Corporate Affairs to the Press Conference on Lobby- ing Legislation, June 30,1987, 4.

215 Corrine Maclaurin, personal correspondence, May 2, 1991. 128

Pross, who called for much tougher restrictíons and regulations on lobbyists in the final chap-

ler of Croup Politics and Public Policy seems resigned to accepting a substantially weaker and

problem-ridden Lobbyists Reglstratìon Act than that for which he had origínally called.

This study concurs with Pross on one point, the Act is a start, but a very timid and tenta- tive step in introducing order into the murkiness which is paid lobbying. ln terms of the objectives of the Act, the legislation is riddled with serious problems which will hinder it from accomplishing the principal goal of informing the public about those individuals and groups which are influencing public policy. This was the intention of this analysis, to judge the Lobb- yists Registration Act in terms of the objectives it set about to achieve. The Act must be accorded less than average grades on the achievement of both objectives. The flaws are simply too numerous and too important to merit any other treatment.

Where this author and Pross do not concur is on the proclaimed legitímacy of lobbying.

Pross and others assume that this innocent pronouncement is not challengable; it should not arouse controversy. This is hardly the case, and the final section will expand the argument that legitimizing lobbying sets a dangerous precedent. ls future Canadian policy-making to be based on public participation via lobbying? Pross contends that

...a system of pressure group politics in which specialized communication obtains access tends to shun Parliament, whereas onur,,rl which legitimation is the wherewithal for partícipation cultivates Parliament.'

Lobbying, especíally paid lobbying, is only necessary because the bureaucracy and unelected civil servants play such a crucial role in policy development. Lobbyists are used to provide information to interest groups and better enable them to infiltrate the complex process in which public policy is made. One of the concerns was over interest groups buying access to decision-makers with lobbyists being the middle-men. However, Pross observes that the real concern should have been with the information which lobbyists sell. This information assists in

216 Pross, "Light on lobbyists" in Policy Options, Dec.,1987,5.

217 Pross, Group Politics and Public Policy, 1986,256. 129 accessing the policy process. Legitimacy and representativeness will not be enhanced simply by identifying which interests are influencing which policies and we have seen that the Act will likely not even do this. However, the Act does maintain that lobbyíng (which emphasizes access and information) is a legitimate activity. lf the issue is to re-instate some legitimacy in the policy process, ít does not seem that there should be any place afforded for paid lobbyists.

6.1 TOWARDS THE FUTURE ln the preface to this study, the incentive for the analysis of the Lobbyists Registration Acú was given as a concern for unperceived and possibly unwanted effects of government initiatives and policies which are undertaken without careful, complete and thoughtful research. This analysis has revealed that the Lobbyists Registration Acf was drafted without the appropriate provisions despite research and debate and will not have its intended and announced effects.

This ineffectiveness is manifested by analysis of the Act's provisions in light of what the Cov- ernment declared would be accomplished with a lobbyists' registration. A number of problems were discussed whích lead to the conclusion that the Lobbyisfs Registration Act will not achieve the stated objective of open policy-making (an informed public) and may very well cause a decrease in the input of legitimate interests.

The title of this study mentions the possibility that the passage of the Act may actually constitute a missed opportunity. lt is to this idea we now turn. lt is plainly evident that the manner with whích we achieve public input into policy is not working. lndeed, this may be a gross understatement. Canadian society must work to effect a process which will achieve the laudable goal of enhancing public participation while not allowing public policy to be made on the basis of collected opinions voiced by the most vocal and effective segments of the society. The contemporary method of lobbyíng by interest groups does not avoid the evil of rule by the vocal minoriÇ. 130

The second statement in the preamble to the Act states that "lobbying is a legitimate activity." This pronouncement, it is maintained, far outweighs the significance of the ineffectiveness of the Act. The opening statement in the same preamble declares that "free and open access to government is an important matter of public interest." Few would disagree wíth this statement if it is interpreted to mean that citizens should be able to achieve some level of meaningful input into the public policy by which they are to be governed. lndeed, this is a fundamental "given" in a polity claiming to functíon democratically.

However, when the two statements are combined, the meaning takes a more ominous and controversial tone. A more than cursory investigation of this preamble shows that the government considers that policy-making should be open to the public and accessible to Broups which can (and should) lobby public officials in an attempt to influence the course of government decisíons. Even if the great number of societal interest were equal in resources and importance, which they are not and will likely never be; they were truly representative and democratic, which they are not; and the State was an impartial referee between these interests, which it is not, would Canadians want to have policy made on the basis of a competition between interest groups?

This touches on the pluralist debate which is another method of incorporating the Broup and group activity into decision-making. Simply stated, pluralists contend that a variety of interests in a socieÇ will organize and compete with other groups for the right to determine policy

218 rn a partrcular' area.

E.E. Schattschneider notes one evident and crucial problem with pluralism which strikes a mortal wound to the idea that all societal interests can have the chance to contribute to policy-making in a pluralist polity. Pluralism would have policy made by an open competition among various interests. Schattschneider claims that "the flaw in the pluralist heaven is that the

218 See Dahl, Dilemmas of Pluralist democracy, 1982 for a more complete discussion of pluralism. 131

heavenly choir sings with an upper class accent.2tt Hi, meaning is that the view that there is

an equal competition amonB interests within society, which is central to the pluralist school, is fiction.

This fundamental flaw will cripple democracy in any polity which opts to organize its poli-

cy-making process around pluralist principles. As Pross notes, unequal resources among inter-

est groups are an important factor which must be thoroughly considered in a system in which

lobbying by interest groups is considered to be a legitimate means of achieving that democratic ideal of gaining citizen input into policy formulation. A lobbyists registration system does nothing to promote this essential equality. Pross notes that a registration scheme

would help identify the participants in public debate and work against illicit lobbying. But it would do nothing to overcome imbalances created by unequal resource bases. A group with the resources to throw impressive 'power parties', to capture media attention, to maintain full-time representatives in the nation's capítals, and to pay for the elaborate briefs which are part of any sus- tained policy discussion has the staying power, the authority, and the 'policy capacity' to oUllast most of its rivals, particularly if they happen to be public-interest groups.220 ln other words, registration might aspire to identify Schattschneide/s heavenly choir, but nothing else.

Employing a variant of an argument used by Tom Pocklington, the dubious wisdom of declaring lobbying legitimate is clearly evidenced. Fullness, fairness, responsiveness and autonomy are attributes on which interest groups and pressure politics are assessed. Only good scores on these qualities would enhance democracy via lobbying."t Crorp politics do not fare well on any of Pocklington's criteria.

219 Schattschneider, The Semisovereign People, 1960, 35.

220 Pross, 1986, 267.

See Pocklington, ed., Liberal Democracy in Canada and the United Stafet 1985, 341-342. 132

As well, it is very unlikely that group politics would ever allow a truly national consensus

to develop that rvould aspire to benefit the entire nation. Special interests would compete to

influence public policy and it would be very difficult to reach national concensus on an issue

in which interest groups were competing to influence.

Also, what role is to be played by formaÍ government institutíons which already exist? Do

Canadians want a reactive and passive legislature that merely ratifies the result of the unequal

competition among interest groups? Or, do Canadians want a legislature that is pro-active and

anticipatory and u'hich is not pressured to implement policy and legislation on behalf of an

interest group? Easton's well known model of the political system (see Figure 6.1) does not

afford interest groups a central position within the 'black box' where constitutional institutions

- THE BLACK BOX.

COVERNMENT INPUTS + € OUTPUTS

-Executive '# Supports -Bureaucracy Policy -Legislatures Demands -Juciiciary Lar.t,s

Figure 6.1: The Political S),stem

convert environmental inputs into policy alrd lan,s (outputs). If interest groups (iormerll, on the borders of the 'black box') are to become ke1, plal,ers in the conversion process that takes place u,ithin the box, how rn'ill the role of those currently u'ithin the box (legislatures, executives, judiciaries, bureaucracies) be defined?

There are many issues which need to be considered, discussed and debated prior to embarking on a course where public policy is made on the basis of interest group representa- 133 tions. Of course, interest groups are inevitable and even fundamental to human nature. The issue is then not to pursue a course of trying to ban interest groups. Their presence is just as sure as the proverbial death and taxes, but the potential danger of assigning interest Broups too much power obliges society to fashion a method of balancing their inevitability and their demands for an attentive audience and effective voice against their dangerous potential. Rob- ert Stanfield summarizes this cautionary sentiment well.

It is one thing for individuals to pursue their own interests as they always have: it becomes a qualitatively different kind of society when individuals organize to pursue theír individual interests collectively. National life has become a strug- gle for advantage among large and powerful organizations --- rìg,t simply trade --- unions and corporations. Organized pressure Broups abound.

In his 1987 article in Policy Options on the Lobbyists Registration Act Pross ended his examination of the Act with the sentiment that the legislation was far from perfect, but at least it was a start. lndeed, the Lobbyists Registration Act, aside from being imperfect, does mark a beginning, but the question is a beginning to what. lt seems to signify a subtle shift toward creating a special interest state in Canada.

Impartiality and objectivity are not the forte of interest groups - achievement of group objectives is. Lobbying has been declared a legitimate activity. This chapter has raised interesting issues which deserve and demand careful and immediate attention. Though this idea has only been identified here, further study on what legitimizing lobbying entails is obligatory.

The Lobbyists Registration Act did little in terms of informing the public about who influ- ences policy and likely dissuaded some interests from even attempting to access policy-makers. As well, it opened Pandora's Box by declaring lobbying to be a legitimate activity. The issue is not so much who lobbies or even who lobbies whom about what and how, but rather should lobbying be accorded a legitimate status.

Stanfield, The Fifth Ceorge C. Nowlan Lecture, Acadia University, teb.7,1977 as quoted in Pross, 1986,1. 134

Mr. Bill Blaikie, an N.D.P. Member of Parliament from a Winnipeg constituency, was one of the most vocal and adamant opponents of the Lobbyists Registration Act as it went through the House of Commons. "l am concerned that lobbying should become the accepted and preferred method of achievíng input into policy-makin g.""t This is a very legitimate concern and demands thoughtful examination. What will the legitimation of lobbying mean for Canadi- an policy-making and democracy in this country?

Blaikie's comments are both discouraging and alarming. This is especially so since the political activities of groups are on the increase. Croups are organizing and pressuring the government as never before. Unlike Pross, this writer does not see group politics as healthy for democracy --- the salvation of Parliament.22a Problems with regime ungovernability and intense factionalism already exist and the government, with legislation like the Lobbyists Regrs- tration Acú seems bent on compounding these problems. Any move that reinforces access to decision-makers based on information will increase the perceived illegitimacy of public policy and irrelevancy of Parliament. Legitimizing lobbying by interest Broups will certainly do nothing to stem the rise of pressure group politics. Pressure group politics and the lobbying it entails are not compatible with democracy and will result in its eventual demise.

Personal correspondence, Winnipeg, MB, February 24, 1991 .

224 Pross, Croup Politics and Public Policy, 1986, 248-74. Appendix A

PREV'OUS FEDERAL PRIVATE MEMBERS' LOBBYING BILLS

Bill Year Súaúus Hansard Page

c256 1 985 1st Reading,

J.R.Rodríguez Dec. 5,1985 9217

C24B 1 985 1st Reading,

J. McCrath June 28, 1985 6368

c495 1 980 1st Reading,

K. Robinson May 2, 1980 668

2nd Reading,

(talked out) 22010-5

c492 1 980 1st Reading,

B. Friesen May 2, 1980 668

c 335 1979 1st Reading,

B. Friesen Oct. 24,1979 563

c 255 1978 1st Reading,

W. Baker Oct. 30, 1978 579 c 330 1977 1st Reading,

W. Baker Oct.31,1977 430

-135- 136 c 328 1977 1st Reading,

K. Robinson Oct. 31, 1977 430 c 316 1976 1st Reading,

J. Reynolds Oct.22,1976 375

C268 1976 1st Reading,

K. Robinson Oct.22,1976 374 c214 1976 1st Reading,

W. Baker OcL22,1976 372

2nd Reading,

Jan. 19,1977

(talked out) 2515-23 c432 1976 1st Reading,

W. Baker April T, 1976 1 2586 c254 1974 1st Reading,

J. Reynolds Oct. 15,1974 376 c24B 1974 1st Reading,

K. Robinson Oct. 15,1974 376 c i15 1974 1st Reading,

B. Mather March 12,1974 409 c89 1973 1st Reading,

B. Mather Jan. 15,1973 267 c121 1972 1st Reading,

B. Mather Feb.25,1972 260 137 c 131 1970 1st Reading,

B. Mather Oct.20,1970 389 c38 1969 1st Reading,

B. Mather Oct. 30, 1969 272

2nd Reading,

April14, 1970

(talked out) 5850-7 c176 1969 1st Reading,

B. Mather Feb.26,1969 5963

(Hansard was reviewed back to 1965.)

Source: Annex "E" of Consumer and Corporate Affairs, Lobbying and the Registration of Paid Lobbyists: a discussion paper, 1985. Appendix B

THE COURSE OF THE LRA THROUGH PARLIAMENT

Date Event

9 September 1985 - Prime Minister Mulroney announces to both Houses of

Parliament that his Covernment íntends to introduce legis-

lation that will require paid lobbyists to register with

a branch of the Ministry of Consumer and Corporate Affairs.

14 February 1986 - The Department of Consumer and Corporate Affairs tab-

led a discussion paper called lobbying and the Registra-

tion of Paid Lobbyisús in the House of Commons.

14 April 1986 - The matter of registering lobbyists was turned over for

further discussion and public hearings to the House of

Commons Standing Committee on Elections, Privileges and

Procedure (the Cooper Committee).

27 January 1987 - The final report and recommendations of this Standing

Committee were tabled in the House of Commons.

12 February 1987 - Mr. Rodriguez, MP moved that this Report of the Stan-

ding Committee on Elections, Privileges, and Procedure be

concurred with. His motion was seconded by Mr. Rils, M.P.

30 June 1987 - The Honourable Harvie Andre, Minister of Consumer & Corp-

-138- 139

orate Affairs,introduced Bill C-82, An Act respecting the reg-

istration of Lobbyists. The Bill was approved on first reading.

14 March 19BB - Bill C-82 was passed on second reading and referred to

customary committee hearings.

22 March 1988 - The Legislative Committee to conduct hearings on Bill

C-82 was struck.

12 April 19BB - The Legislative Committee began the hearings on the Bill

27 April1988 - After less than 15 days of hearings and debate on Bill

C-82, the Legislative Committee reported back to the House of

Commons suggesting certain minor amendments be made to the bill

prior to the third reading.

1B July 19BB - AII 11 of the proposed amendments were defeated.

25 July lgBB - Bill C-82 passed third reading and went to the Senate.

B September 19BB - Bill C-82 passed third reading in the Senate.

13 September l98B - Bill C-82 received Royal Assent and was proclaimed

law. The Bill, having passed Parliament, was called the

Lobbyi sts Regi strati o n Act.

This summary of the manoeuvres of Bill C-82 through Parliament was compiled and adapted from the Consumer and Corporate Affairs discussion paper,Lobbying and the Registration of Paid Lobbyisfs, 1985, and the Library of Parliament, Research Branch, Registration of Lobbyists, 1987. The Commons Debatesof March I and 14,July 15, 18 and 25,1988 were also used in the compilatíon of this Appendix. Appendix C

RECOMMENDAT'ONS OF THE COOPER COMMITTEE

Recommendations by the Standing Committee on Elections, Privileges and Procedure respecting Le gi s I ati o n to Re gi ste r Lo b byi sts.

1. We recommend the adoption of a system of registration of paid lobbyists

(emphasis mine).

2. We recommend that the government consult with members of the lobbying

industry to discuss the formatíon of an association of lobbyists in addition to

the system of registration. This will put the responsibility for day to day conduct

of the lobbying industry squarely where it belongs, on the industry itself.

3. We recommend that lobbying be defined as attempting to influence either directly

or indirectly any governmental decision whether it be legislative or administrative.

4. We recommend that the act of lobbying government be specifically defined

as to include:

(a) attempting to influence the making or amending of legislation or regulation.

(b) atiempting to influence the making or changing of federal policies

or proSrams.

contributions or any similar benefit.

-140- 141

(d) attempting to influence federal appointments to boards, commissions and

any other public office.

5. We recommend that in order to escape the problems whích have plagued the

United States federal lobbying act, approaches to influence the executive,

Members of Parliament which includes Members of the House of Commons and

Senate and their staff, and the bureaucracy be considered to be activities

within the definition of lobbying,

6. We recommend that for the purpose of registration, Iobbyist be defined generally

to be anyone who for compensation engages in lobbying activities directed at the

executive, Members of the House of Commons, the Senate and their staff. More

specifically it includes:

(a) those who for compensation represent third party interests directly or

indirectly to government including those representing foreign governments.

(Duly accredited diplomatic or consular offices of a foreign government or

members of their staff would not be considered as lobbyists. Nor do we con-

sider the members and representatives of the various levels of government to be

lobbyists when they are dealing with the federal government.)

(b) employees of officers of non-governmental business organizations, non-profit

organizations, volunteer groups, single interest volunteer groups and foreign

nationals who for pay or other benefit per{orm duties which may from time to

tíme include lobbying. The organization by which they are employed or with

which they are associated should also be required to register.

adveftising campaigns to disseminate material designed to influence government

through public opinion. 142

(d) non-profit organizations, volunteer groups and single interest groups when

they retain a paid lobbyist to represent their views to Bovernmen!

(e) lawyers, accountants and other professionals when they represent clients in

dealings with government primarily for the purpose of lobbying as defined in

this Report.

7. We recommend that registered lobbyists be required to disclose:

(a) theír names; firm name, if applicable, and a contact person; addresses and

telephone nurnbers.

(b) names of clients and their places of business.

L We recommend that lobbyists be prohibited from receiving compensation which is

contingent in any manner upon the outcome of the lobbying activity.

9. We recommend that the Assistant DepuÇ Registrar Ceneral be charged with the

responsibility of administering the register of lobbyists. This office will

maintain records of the information required and will make same available to

the general public on a cost recovery basis.

10. We recommend that there be no cost associated with the filing of information on lobbying

matters.

11. We recommend that those who fallwithin the definition of lobbyist be required to register

with the Assistant Deputy Reistrar Ceneral.

12. We recommend that within 10 days of the commencement of the conduct of a specific

lobbying activity the lobbyist be required to notify the Assistant Deputy Registrar

Ceneral and disclose the necessary information. 143

13. We recommend that the Assistant Deputy Registrar Ceneral be given sufficient

investigatory powers so that he can enforce compliance with the requirements of

the register of lobbyists. This would include the authority to receive complaínts,

carry out investigations in order to verify the complaint and where he deems it

necessary refer the matter to the appropriate authorities for further action.

14. We recommend that the statute establishing the register contain penalties for non-

compliance which would be severe enough to make compliance a desirable and

necessary goal on the part of lobbyists.

Source: House of Commons, Canada, Minutes of Proceedings and Evidence of the Standing Committee on Elections, Privileges and Procedure, Tuesday, January 27,1987. Appendix D

LOBBY,ST$ THEiR FIRMS/EMPLOYERS AND PAST POL. ACTIVITIES

LOBBYIST & TIER FIRM/EMPLOYER PRIOR POL. ACTIVITIES

TonyAbbott (ll) RetailCouncil -campaign manager for of Canada Robert Winter in 1 968 Liberal leadership convention

Jean-Jacques French submarine -former Liberal Blais (ll) co. vying for the Minister of now abandoned National Defence nuclear submarine contract to DND

Carleen Carroll(l) PAI -former legislative assistant to Flora MacDonald in DOC

Murray Coolican (l) PAI -"borrowed" by DIAND in 1984

Jocelyn B.C. Telephone -formerly employed Cote-O'Hara (ll) lobbyist in the PMO

Paul Curley (l) Curley & Associates -campaign secretary for Mulroney in 1984 election

Tom D'Aquino (ll) once led Consulting -Special Assistant firm of lnterconsel to Trudeau in PMO but now employed by former client, BCNI (Business Council on National Issues)

144 145

Cerald Doucett (l) CCI -brother of Fred Doucett, senior polícy advisor to Mulroney

-former Min. of Education in Nova Scotia Cov't

Duncan Edmonds (ll) once with PAI -Paul Martin's EA and campaign manager in 1968 Liberal leadership convention

Tommy Douglas (ll) government relations -former NDP leader advisor to Husky Oil

Judy Erola (ll) Iobbyíst for Pharma- -former Minister ceutical Association of Consumer and of Canada Corp. Affairs

Bob Fife (l) Murray & Fife -former politícal correspondent for CP

Pierre Fortier (l) Curley & Fortier -former National Director of PC Party

Bill Fox (l) FCC Fox Communications -former Press Sec. Consultant to PM Mulroney

Francis Fox (n/a) former employee -former Trudeau with ECL Cabinet Minister

Robert Courde (l) ECL former Quebec M.P.

WalterCray(l) Henry & Gray -allied with ECL -former Tory Consultant

Larry Crossman (l) Crossman Croup, -former leader of Consultants Ontario PC's

Sam Hughes (l) ECL former national head of Canadian Chambers of Commerce, relatively non-partisan but a "giant" in the business community.

Jon Johnson (l) PAI -former Manitoban Cabinet Minister -EA to Cabinet Min. Perrin Beatty

Irv Keenleyside (l) ECL -non-partisan but noted for extensive ties with bureaucracy 146

Bill Lee (l) ECL -various (see ch. 3)

Rick Logan (l) ECL -chief of staff in DND under Robert Coates

Patríck MacAdam (l) CCI -formeremployee of PMO

Frank Moores (l) CCI -various (see ch. 3)

Craham Murray (n/a) Ontario lobbyist -former EA to Ont. NDP leader Michael Cassídy

Susan Murray (l) Murray & Fife -v.p. on Ont. Tories (see ch. 3)

Harry Near (l) Near Consultants -former EA to Ray HnaÇshyn & Associates in Clark gov't (NCA)

-formerly with PAI but hired by Pat Carney in Ministry of Energy

Bill Neville (l) currently runs the -various professional lobbying (see ch. 3) firm of William Neville and Associates

Cary Oullet (l) ccr -formerTory organizer in Quebec -close personalfriend of Mulroney -former chief of staff to Benoít Bouchard, Mulroney's Minister of Transport

Rob Parker (ll) lobbyist for -former Tory MP and Royal Bank aide to John Crosbie

Simon Reisman (l) Reisman and Crandy, -FTA negotiator Consultants

Elizabeth formerly with PAI -works with Ministry of Roscoe (n/a) State for Finance 147

Tom Scott (l) Murray & Fife -former Ontario Tory pollster

JodiWhite (l) White Consulting -former Chief of Staff for ExternalAffairs Minister, Joe Clark

Ramsey Withers (l) ccr -former Deputy Minister and Chief of Staff in DND.

SOURCES: Sawatsky, The Insiders, 1987 and many newspaper articles were used in the com- pilation of this appendix. ry@:r

APPendix E

THE LOBBYISTS REGISTRAT/ON ACT

CHAPTER 44 (4th SUPP') CHAPITRY- 44 (4' suppl.)

I'enregistrerrent des Iobbyistes An Act resDecting the registration oi ìobbyists Loi concernant ch- 53, sanctíonné !e it988. c. 53, assented io It988, sePtembre 19881 I 3th SePtenúer, 1988) t3 Préambulc govern- Vu I'intérêt pubiic présenté par la liberré P¡æmblc WH Er q.rs iree and open access to ci'accòs aux institutions de I'Etat: ment is en important matter oi pubiic interest: du Iobbyisme auprès des AND \\'HERE.rs lobbv-ing public oillce holci- Vu la légitimité tituiaires d'une charge eÍs is a legitimate ectivilY: Publioue: aux titulaires AND \\'HERE,rs it is dcsìrable lhat public Vu I'opoortunité d'accorder pubiioue et au public Ia possibi- oifìce hoid¿rs rnd the public be abie to kno*' d'une charge iitÉ de savoir qui cherche à exercer une rvho is atrempting to iniìuence -qo!'ertment: influence auprès dc ces institutlons: AND WHE.RE,\S iì SlSrem lor the regisiration que !'enregistrement des lobbyistes oi paid lo'o'oyisrs should not impede lree and Vu le l'ait rémunérés ne doit pas laire obstacle à cette open access to govÈlnmÈnt: liberté C'rccès. Now TsEp.EFoRE. Her Ma,iestr, bv and I'avis ùt evec le consentement with the advice and consent ol the Senatc and Sa Majesié. sur et de la Chambre des communes ciu House oi Commons ol Canada' Ènacts as du Sénat Canada. éciicte : lollows:

SHORT TITLE TITRE,\BRECE L Loi sur I'znregisrremenl Ces lobb.,-istes- Titrc abré-zi Short titlc l. This Act may be cited as the loååyists Registration Act. ITIONS INTERPR ETÀTION DEFIN ( Les déllnitions qui suivent s'appli- Dél'initions Dcl'initions 2. (1) In this Act. 2. l) quÈnr à la présente loi. "organiation' "organization" includes any goveÍnment. other personne désignée à ce titre en .otganisatioñ tñan ihe Covernment ol Canada' or any .direcreur, La "registrcr''dircctcur' dË I'arricle 8. business, trade or industr¡- lssoci¡tion' trade appiicalion prolessional parmi les organisa- union or labour organization' .organisation, Sont compris "orsøni:ctt"'orsanisarrc' association, chamber of commerce' board of tions ìes gouuarnat"n,, à I'excepiion ðe charitable soci- - commer- trade, voluntary association. celui ciu C¡nada -. les associations ety, partnership or interest group: ciaies. industrielles. proíessionnelles et syndi- de commerce' les organis- "Paymcnl." "pavment" means money- or anything of value caies. ies chambres cie bienlaisance, les sociétés .paiem?nt, and includes a contract. Promlse or agree- mes bénévoles ct valuc: dc personnes einsi que les groupes d'intérêt. ment io Pay money or anl-thing oi autre objet de valeur. Y 'paicmcnt' "præcribc

148 Chap.44 Iobby ists Re gisl rat i o n 149 "public of'lìcc "public office holder" means any olficer or (titulaire d'une charge publique' Agent ou .titulairc d'unc holdcr" .tit ulai¡e-.-¡ employee of Her Majcsty in right of Canada . employé de Sa Majesté'du ciref du Óanada. "h"8' and includes La présente défìnition s'apptique notam- ïli;;::' (a) a member of the Senate or the House ment: ol Commons and anv person on the staff a) aux sénateurs et députés fédéraux ainsi olsuch a member, qu'à leur personnel; (á) a person who is appointed to any ó) aux personnes nommées à des organis- office or b,My by or with the approval of mes par le gouvcrneur en conseil ou un the Gove¡nor in Council or a minister of ministre fédéral. ou avec son approbation, the Crown. other than a judge receiving a à I'exclusion des juges rémunérés sous le salary under the Judges lc¡ or the lieuten- régime de la Loi sur les Tuges et des ant governor of a province, I ieu tena n ts-gouverneurs; (c) an oifìcer, director or employee of any c) aux acjministrateurs, dirigeants et federal board. commission or other tri- employés de tout oiäce iédéral, au sens de bunal as defined in the Federal Court Act, l¿ Loi sur la Cour fériérale; (d) a merrber of the Canadian Armed d) aux membres des Forces armées cana- Forces, and diennes: (e) a member ol the Royal Canadian e) aux membres de la Gendarmerie rovale Mounted Police: du Canàda. "rcgist mr" "registrar" means the registrar designated pursuant to seclion 8. Subsidiary (2) For the purposes oi this Act, a corpora- (?) Pour I'aoplication de ia présenre lqi, u¡s Filialc corpora t i on tion is a subsiciiary of another corpora'rion il personne morale est la filiale d'une autre si, à la (a) securities ol the fìrst-mentjoned corport- fois : tion to which are atrached more tiran fìfty a) ses valeurs mobilières qui comportent plus per cent ol the votes Ihat may be cast to elect de cinquanre pour cent des droits de vote directors ol the first-mentioned corporation pouvant être exercés Iors de l'élection de ses are held, otherwise than by way of security administrateurs sont détenues, directement only, directl-"- or indirectly, whether through ou indirectemenr notamment par I'inter- one or more subsidiaries or otherwise, by or médiaire d'une ou- de plusieurs ñliales lor the benefit of the other corporation; and aulrement qu'à titre de garantie uniquement,- (å) the votes attached to those securities are par cette autre personne morale ou pour son sufñcient, if exercised, to elect a majority ol bénéñce: the directors oi the first-mentioned corpora- á) Ies droirs de vote que comporrent ces tion. valeurs mobilières sonr suflisants, Iorsqu'ils sont eflectivemenr exercés, pour faire élire la majorité de ces adminisrrateurs.

APPLICATION CHAMP D'APPLICATION

Binding on Hcr 3. This Acr is binding on Her Majesty in 3. La présente loi lie Sa Majesté du chef du Champ Majcsty right ol Canacia or a province. Canada ou d'une province. d'applica tion

Rætricrion on 4. (l) This Act does not apply to any of the a. (l) La présenre loi ne s'applique pas aux Ratriction appiication following persons when acting in their official actes accomplis, dans le cadre de leurs attribu-

capacity, namely, tions, par les personnes suivantes : (a) members of the legislature of a province a) les députés provinciaux et leur personnel; or persons on the stafl of such members; å) les employés d'un gouvernement provin- (å) employees of the government of a cial; province; c) les membres d'un conseil ou autre orga- (c) memben of a council or other statutory nisme créé par une loi et chargé de Ia con- body charged with the administration of the duite des aflaires municipales d'une adminis- civil or municipal affairs ol a city. town, tration locale cité, ville, village, 150

E nregist re ment d e s I ob bY is t es Chap.44 district leur personnel et municipality or district, P€rsons on rhe stafl municipalité ou -, ol such memÞrs or officers or employees of les employés d'une telle administration: a city, town, municipality or district: d) les membres d'un conseil de bande au (/) members of the council of a band within sens de la Loi sur les Indiens, leur personnel the meaning ol lhe Indian lcf, persons on et les employés d'un tel conseil; the stafl of such members or employees of e) les agents diplomatiques, fonctionnaires such a council: consulaires et représentants olficiels au (e) diplomatic agents, consular ofñcers or Canada d'un gouvernement étranger; officiil representatives in Canada ol a for- 7) les lonctionnaires d'une agence spécialisée eign government; or des Nations Unies au Canada ou d'une autre (f) offìcials ol a specialized agency ol the organisation internationale à qui des privilè- Únited Nations in Canada or officials of any ges et immunités sont accordés sous le other international organization to whom régime d'une ìoi léciérale. there are granted, by or under any Act ol Parliament, privileges and immunities. pas dans ls5 ldcn ldcm (2) This Act does not apply in respect of (l) La présente loi ne s'applique suivants : (a) any oral or written submission made to a cas commiitee ol the Senate or House of Com- a) présentation d'observations, orales ou mons or ol both Houses of Parliament or to écrites, soit à un comité du Sénat ou de la any body or p€rson having jurisdiction or Chambre des communes, ou à un comité mixte, soit. cians le cadre de procédures dont Flowers conlerred by or under an Act of Parliament. in proceedings that are a matter I'existence peut être connue du public, à une oi public record; or personne ou à un organisme ciont les pouvoirs compétence sont conlérés sous le (å) any oral or written submission made to a ou la public offìce holder by an individual on régime d'une loi fédérale: behalf oi any person or organization with å) communication orale ou écrite entre un respect to the enforcement, interPretation or mandataire et un titulaire d'une charge application ol any Act of Parliament or regu- publique portant sur I'exécution, I'interpréta- lâtlon thereunder by that public oifice holder tion ou I'application, par celui-ci, d'une loi and with resp€ct to lhat person or organiza- lédérale ou d'un règlement d'application de tion. celle-ci à l'égard de la personne ou de I'organisation mandante. ldcm ldcm (3) Nothing in this Act shall be construed as (3) La présente loi n'a pas pour effet d'exiger requiring the disclosure of the name or identity la divulgation du nom ou de I'identité d'un of any individual where that disclosure could individu lorsque cela risquerait vraisemblable- reasoñably be exp€cted to threaten the salety of ment de nuire à sa sécurité. that individual.

REG ISTRATION OF LOBBYISTS ENRECISTREMENT DES LOBBYISTES Tier I I^ catégorie

Professional LobbYists Lobbyistes professionnels Lobbyistcs ( I Est tenu. dans les dix jours suivant Profæsional 5. (l) Every individual who, lor Payment, on 5. ) proicssionncls lobbyists behalf of any person or organization, in this I'engagement, de fournir au directeur une section relerred to as the "client", undertakes déclaration en la forme réglementaire conte- to arrange a meeting with a public office holder nant les renseignements visés au paragraphe or to communicate with a public office holder (2) tout individu ci-après appelé .lobbyiste - paiem.ent, in an attempt to influence prolessionneb Qui, moyennant - d'un client, personne physique (a) the development ol a legislative proposal i'engage, auprès ou morale ou organisation, soit à ménager pour by the Government of Canada or bY a, une entrevue avec un titulaire d'unc member of the Senate or the House ol ce client Commons, 151 Chap. 44 Lobbyi st s Re gis t rat ion

(á) the introduction, passage, defeat or charge publique, soit à communiquer avec ce amendment ol any Bill or resolution belore dernier afin de tenter d'influencer: either House ol Perliament, a) l'élaboration de propositions Iégislatives (c) the making or amending of any regula- par le gouvernement fédéral ou par un séna- tion within the meaning of the Statutor¡, teur ou un député; Inslrumenls Act, å) le dépôt, la modifìcation, I'adoption ou Ie (d) the development or amendment of any rejet d'un projet de loi ou d'une résolution policy or proSrem of the Government of dont la Chambre des communes ou le Sénat Canada, est saisi: (e) the awarding ol any monetary grant or c) la prise ou la modifìcatíon de rout règle- contribution or orher fìnancial benelìt by or ment au sens de la Loi sur les Iexl es on behall ol Her !lajesty in right of Canada, réglentent aires; or d) l'élaboration ou Ia modifìcation de politi- ff) the awarding oi any contract by or on ques ou pro_qrammes lédéraux; behali of Her Majesiy in right ol Canada e) I'octroi de sommes d'argent. à titre de shall, not later than ten days after entering into subvenrions ou de contributions, ou d'autres that undertaking, fìle with the registrar, in the avantages financiers semblables, par Sa prescribed lorm ani manner, a return setting Majesté du chel du Canada ou en son nom: out the subsection information reierred to in /) I'octroi de conrrars par Sa Majesté du (2) chel du Canada ou en son nom.

R ctu rn (2) The retu¡n reierred to in subsection (l) (2) Dans sa déciaration, le lobbyiste profes- Rcnscignc- shall set out the lollowing infornation: sionnel Èst. tenu de fournir les renseignements ttntt (a) the name and business address of the suivants: indiviciual and, ii aoplicable, the name of the a) son nom, I'adresse de son érablissement firm where the individual is engaged in ainsi que, le cas échéanr, le nom de sa ñrme: business; ó) les nom et adresse de son client; (å) the name and ¿ddress of the client; c) si son client est une personne morale, le (c) where the client is a corporation, the nom et I'adresse de chacune de ses ñliales ou, name and address of each of its subsidiaries s'il est lui-même une fìliale d'une personne and, where the corporation is a subsidiary of morale. les nom er adresse de celle-ci; any other corporation, the name and address d) I'objet de I'inren,ention enrrevue ou of that other corporation: communication envisagée -auprès du titu- (d) the proposed subject-matter of the meet- laire d'une charge- publique; ing or communication, as the case may be; e) tout autre renseignement réglementaire and utile à son idenrificarion et à celle de son (e) such other inlormation relating to the client, y compris éventuellement de la filiale identity of the individual, the client or any ou de la personne morale. selon le cas, visée à corporation or subsídiary referred to in para- I'alinéa c). graph (c) as ís prescribed.

Ncw informa- (3) Every individual who return (3) Miscà jour tion fìles a Le lobbyiste professionnel informe par referred to in subsection (l) shall, as soon as écrit, le plus tôt possible compte tenu des cir- practicåble in the circumstances, advise the constances. Ie directeur de tout changement registrar in writing of any changes in the ínfor- dans les renseignements lournis au titre du mation contained in the return. paragraphe ( I ).

(a) This secrion does not R-triction aDolrcilronl:l,llill* - :, apply in respect ol (a) Le présent article ne s'applique pas aux anything undertaken to be done by an actes accomplis uniquement au nom de son employee on the sole behalf of the employee's employeur par un employé. employer. 152

E nre gis tre me nt d es I obby i s t es Chap.44

Tier I I V catégoríe

Other LobbYists Autres lobbYistes personne Obligations Othcr lobbyists ó. ( l) Where a signifìcant part ol the duties 6. ( I ) Tout employé d'une physi- ol an employee oI a person or organization is to que ou morale ou d'une organisation dont une communicate with public ofñce holders on partic importante des fonctions comporte la behalf ol that person or organization lor the communication avec des titulaires d'une charge purpose oi attempting to influence any ol the publique, afìn de tenter d'influencer I'une des matters referred to in paragraphs 5(l)(a) to questions vìsées aux alinéas 5(l)a) à e), est (e), that employee shall. within two months tenu dc lournir au directeur, dans les deux mois alter the coming into lorce ol this section or suivant la date d'entrée en vigueur du présent alter ñrst undertaking those duties' whichever article ou celle de sa prise de lonctions, si elle is the later. and within lwo months after the est postérieure, et dans les deux mois suivant la end of each calendar year, fìle with the regis- lìn de chaque année civile par la suite. une trar, in the prescribed lorm and manner. a déclaration en la lorme réglementaire compor- return setting out tant les renseignements suivants : (a) the name of the emPloYee: and a) son nom; (ó) the name and-address of the person or å) les nom et adresse de son employeur. organization by whom the employee is employed. L{i* i;our Ncw informa- (2) Every'emPloyee who files a return (2) L'employé en question inlorme par écrit, t ion relerred to in subsection (l) shall' as soon as le plus tôt possible compte tenu des circons- practicable in the circumstances, advise the tances, le cjirecteur de tout changement dans les iegistrar in writing of any changes in the in[or- renseignements lournis au titre du paragraphe mation conlained in the return. ( l). Déñnition dc of includes an (3) Pour I'application du présent article, est Dcfinition (3) In this section, "Èmployee" .cm cio!é' "cmployæ" olfìcer other than an ollicer who is not compen- assimilé à un employé le cadre dûment rému- sared lor the performance of the duties oi the néré pour ses lonctions. olñce.

Certification ,4lIesîarion

Ccrtilìqtion 7. Every individual who is required by sec- 7. L'auteur d'une déclaration est en outre '\ttstation tion 5 or 6 to file a return with the !-egistrar tenu d'y certifier qu'à sa connaissance les ren- shall certify on the return that the inlormation seignements qu'il lournit au titre des articles 5 contained therein is true to the best of the et 6 sont véridiques. individual's knowledge and belief.

, REGISTRY OF LOBBYISTS REC ¡STRE DEs LOBBYISTES Dirætor Rcgistrar E. The Registrar Ceneral of Canada may 8. Le registraire général du Canada p€ut designate any person employed in the oifìce ol désigner tout membre du personnel de son the Registrar General of Canada as the regis- bureau à titre de directeur de I'enregistrement trar for the purposes of this Act. pour I'application de la présente loi. tient le registre ds5 16þ Rcgistrc Rcgistry 9. ( I ) The registrar shall establish and main- 9. (l) Le directeur tain a Registry of Lobbyists in which shall be byistes où il consigne tous les renseiSnements kept a record of all inlormation submitted to qui luí sont lournis en application de la pré- the registrar under this Act. sente loi. Form of (2) The inlormation contained in the Regis- (2) Le registre est tenu en la forme et selon 115,.'1" Rcgistry try ol Lobbyists shall be organized in such les modalités réglementaires. manner and kept in such form as are prescribed. 153 Chap.44 I-o b b ¡, is t s R e gi s t rat i o n

Acc6s to 10. (l) The Registry of Lobbyists shall be 10. (l) Le public peut consulter le registre Rcaistry open to public inspcction at such place and at des lobbyistes au lieu et aux heures que fixe, such reasonable hours as the registrar may dans des limites raisonnables, le directeur. determine.

Fm for (2) The registrar may provide copies of docu- (2) Le directeur peut remettre des copies ou Frai¡ dc sruicrs ments and perform any other service on pay- lournir d'autres services moyennant I'acquitte- consult¡tion ment of such fee as is prescribed for that ment de droits réglementaires. service.

ANNUAL REPORT RAPPORT ANNUEL

Annual rcpon I l. ( I ) The regisrrar shall, within three ll. (l) Dans les trois mois suivant la ñn de Rappon annucl months after the end ol each fiscal year. pre- chaque exercice, le directeur présente au regis- pare a report with regard to the administration traire général du Canada un rapport sur I'ap ol this Act during that fiscal year and submit plication de la présente loi au cours de cet the report to the Regisrrar General oÍ Canada. exercice.

Tabling (2) The Registrar General of Canada shall (2) Le registraire gênéral du Canada fait Dcpot cåuse a copy of the report prepared pursuant to déposer le rapport devant chaque chambre du subsection (l) to be laid before each House of Parlement dans les quinze premiers jours de Parliament on any ol the first ñfteen days on séance de celle-ci suivant sa réception. which that House is sitting after it is received.

RECULATIONS RËCLEVENT

R cgu la tions t2. The Governor in Council may make 12. Le gouverneur en conseil Peut, par RèSlcmcnt regulations règlement : (ø) prescribing any matter or rhing thar by a) prendre toute mesure d'ordre réglemen- this Act is to be or may be prescribed: and taire prévue par la présente loi; (ó) generally lor carrying our rhe purDoses á) prendre toute autre mesure d'appiication and provisions ol this Act. de Ia présente loi.

OFFENCES AND PUNISHMENT INFRACTIONS ET PEINES

Contravcnt ion 13. (l) Every individual who contravenes or 13. ( l) Quiconque contrevient à la présenre Contmvention à of Act la loi fails to comply with any provision ol this Act is Ioi commet une infraction et encourt, sur décla- guilty of an offence and liable on summarv ration de culpabilité par procédure sommaire, conviction to a fine not exceeding twenty-fìve une amende maximale de vingt-cinq mille thousand dollars. dollars.

Fals or (2) Every individual who knowingly makes (2) Quiconque donne sciemment, dans toute Farg mislæding dcclantion JtA tcmcn ß any false or misleading statement in any return déclaration requise par la présente loi, des ren- required to bc fìled under this Act is guilry of seignements laux ou trompeurs commet une an olfence and liable infraction et encourt, sur déclaration de (c) on summary conviction, to a fìne not culpabilité : exceeding, twenty-five thousand dollars or to a) par procédure sommaire, une amende imprisonment for a term not exceeding six maximale de vingt-cinq mille dollars et un months or to both; and emprisonnement maximal de six mois, ou (å) on proceedings by way of indictment, to I'une de ces peines; a fine not exceeding one hundred thousand b) par mise en accusation, une amende dollan or to imprisonment flor a term not maximale de cent mille dollars et un empri- exceeding two years or to bth. sonnement maximal de deux ans, ou I'une de ces peines. 154

Enregistremenl des lobbyistes Chap. 44

REVIEW BY PARLIAMENT EXAMEN PAR LE PARLEMENT 14. (l) On the expiration ofthree years alter 14. ( l) Au début de la quatrii¡¡s 3¡¡!s Examcn the coming into lorce ol this section, this Act suivant I'entrée en vigueur du présent article, la shall be referred to such committee of the présente loi est soumise à I'examen d'un comité Senate, ol- the House of Commons or of both soit de la Chambre des communes, soit du Houses ol Parliament as may be designated or Sénat. soit mixte, constitué ou désigné par le established by Parliament for the purpose ol Parlement pour étudier son application. reviewing the administration and operation of this Act. Rcport (2) The committee designated or established (2) Le comité procède à I'examen détaillé ç16 Rapporr by Parliament lor the purposes of subseciion I'application de la présente loi. Dans I'année (l) shall undertake a comprehensive revie,¿'of suivant le début de I'examen ou dans Ie délai the administration and operation ol this Act supérieur autorisé par la Chambre des commu- and shall, within one year after the review is nes. il présente au Parlement son rapport, dans undertaken or u,ithin such further time as the ìequel il fait état notamment des modifications House ol Commons may authorize, submit a qu'il juge souhaitables. report to Parliament thereon including a statement ol any changes the committee u'ould recommend.

CON{INC INTO FORCE ENTRÈE EN VICUEUR

Coming into provision présente ìoi ou telle cie ses disposi- Entré: cn forcc 15, This Act or any thereoi shall 15. La come into force on a dãyor davs to be fixed bv tions enrre en vigueur à Ia date ou aux dates "'8utut proclamation. fi xées par proclamation.

QL'EEN'S PRINTER FOR C,{N,{D.å 9 IMPRIMEUR DE L,{ REINE POI.IR LE CANADA OTTAWA, 19E9. Appendix F

TIER I AND TIER II LOBBYISTS' REGISTRATION FORMS

-155- Consommat¡on E*g 3:ir'"'å,ifiljirs canada et Corporations Canada 156 Lobby¡sis Registraticn Direction de I'enregistrement Brancn des Iobby¡stes TIER I !.OtsBYISTS REGISTRATION

DEFINITION Tier I Professional Lobbyist A Tier I prciessional loobyist is every indiviCual who. for payment, on behaif of any person or organization, uncertakes to arrange a meeting with a public office holder or to communicate witf a_public oÍfice holder ]n an attempt to iniluence one cr märe oÍ the aciivities lidted below under Type of activiry, A through F. (See subsection 5(1) of the Lobbyists Regisiration Acr.) INSTÊUCTIONS A Tìer I lobbvisr snall Íile ,yiti Ìhe re-c:s:rar ihe informaticn requesteC on the :i-cnt-harc :ace. rct Ieief than ien (i0) da'/s aii=' :ntering in:c an under:a

ntg--q{g.Senà compteted rerurn to : Registrar of Lobbvists : Consumer and Córporate Affairs Canada Place du Portage ll, 4rh Fioor 165 Hotel de Ville street Hull,'Quebec '-.:.'r..,.. :: . Canada . ,-j ;-.:' K1A 0C9..r':;.-i. . ..Í:ii1+, [8 1 ei 9 s_3-1,1_1 19) 95$9247 T¡ER I Fæ rûllrtry urc onþ LOBBYISTS REGISTRATION DA'TE ol

This inlomelion ¡s collæted under the authority of the Loòbvists R6oistration Act, and will b€ a maner ot publ¡c record, DOC * It l¡ ¡torcd ln Pñonll lnlomrt¡on B¡nk CCAJP-PU{¡9S.

RETURI{ (Please type or print in a legible manner.) A: lndlvidual Given names and init¡als

Title

Låeår .ä'é bi vãui i¡i' Facsimile no.

...... 1 I Postal code Country Telechone no () B: Client Legai reme of corporation, organizarron or person on whose benalf you

the name oi the principal l:cresenrative with whom you ceal

Cilv

I Country Tetecnone no.

tt /\ ¡ t...... L\..... :í parent(s) of the client ccrporatior (FOR ADDTTTONAL pAFa;:;(S) USí SFPAFÁiE SHÊíÐ

Cfiice address Slreet

Province Postal code Country Teieonone no. t.... I ruãme oi åuÉJtå¡ã.vt¡"Lj òi ine crienì corDoratron (FOR ADDTTIONAL SUSSiS/A,4yflãS) USE SEPAFÁ/-E SHE:ll

aoàiess

Province Postal code Country Telepnone no. ()

C: Subiect'matter (See paragraph 5(2Xd) of the Act): Define the subìect-matter of your undertaking by reporting one or more applicabie combinations of a number. representing the area of concern, and a letter, represent¡ng the type oi aciivity (e.g., tOA). Language used to define subject-matter: [- rIt, III r][--t-'-]l Enslish l-l lll['llffi¡lt Pleasespecify:..... rrench [-l

D: Certlflcafion

I hereby certity that the information contained ¡n this return is true to the best of my knowledge and belief.

Day Monlh Ys '::

l5/ Consumer and Consommation H*E Corporate Affairs Canada et Corporations Canada Lobbyists Registration Direction de I'enregistrement 158 Branch des lobbyistes

TIER II LOBBYISTS REGISTRATION

DEFIN¡TION Tier ll Lobbyist

A.Tier ll lobby-ist is every employee of a person or organization for whom a significant part of the duties is to communicate yith. public office holders, on behalf of the e.mployer,. in an attempt to influence the Gbvernment of Canada in respect of: (a)lhe development of .a legislative proposal; (b) the introduction, passage, defeat or amendment of any bill or res'olution; (cJ the making or amending of .any regulation; (p)tn9 development.or amendment of any policy or program;br (e) the awarding of any monetary grant, contribution or any other financial benefit. (See subsection O(ì) of ine LoO-Oyists Ròçjistration Act)

!NSTRUCT¡OhrS

A Tier ll lobbyist shall file with the registrar the information reguested below, not later than two (2) months after the coming into force ol the Act or arter first undertaking any activit¡es described above. Within two (2) months after the end of each calendar year, a Tier ll lobbyist shall provide the registrar with an updated registration.

Under subsection 6(2) of the Act, the lobbyist is required to advise the registrar in writing, as soon as practicable, of any changes in the information previously Íiled. Such notice should include the registration number assigned to the original return to which the chánges apply. The registration number will be communicated to the lobbyist through an acknolledgement.

The termination of lobbying duties is a change in the information. A Tier ll lobbyist must iherefore notify the registrar of such termination.

Fìeturns or notices may be íiled by mail or delivery in person. (See subsection 3(2) oÍ the Regulations.)

Failure to comply with any provision of the Ãct, or making any false or misleading statement in any return to be filed under the Act, ís subject to a line andlor imprisonment.

Ïhis information ¡s collected under lhe authority of the Lobbvtsts Beoistralion Act ano w¡¡l be a matter of ouciic recorC. lt is stored in Personal Information Bank ccarP.PU.O95,

RETURN (Please type or pr¡nt in a legible manner.) APPLICABLE YEÂR: 19 A: lndividual and employer information Surname Given names and initiais

Tiile Telephone no. r( ) Legal name of emoloyer Facsimile no. r( ) City Number t. Province Postal cooe Country Telephone no. () B: Certification

I hereby cert¡fu that the informat¡on contained in this return is true to the besr cf my knowledge and belief.

Signature of lobbyist:

Day Month Year

Please send completed return to: Registrar of Lobbvists For reglrtry uae mþ Consumer and Córoorate Affairs Canada of Place du Portage l[, 4th Floor 165 Hôtel de Ville Street DOC Hull, Quebec Canada K1A 0C9 (819) 953-7144 Facsimile: (819) 953-9247 ccA 3f30 SOURCES

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Perlin, Ceorge, ed. Party Democracy in Canada. Scarborough, Ontario: Prentice-Hall Canada Ltd., 1988.

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Academìc, Newspape4 and Magazìne Arficles

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Calgary Herald, "Lobbyist Bill Overdue," April 18, 1988.

Cameron, Stevie. "Tricky Times Ahead for Many Lobbyists" in lhe Ottawa Citizen. Saturday, April 26, 1986

Canadian Business. December, 1 987.

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'------. "Those paperphiles still demand piles of the white stuff," lbid.

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Erola, Judy. "Ethics and Lobbying: a business perspective" in Canadian Public Administration, vol. 34, no. '1, Spring,1991.

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"Ottawa tabling legislation to end secrecy of lobbyists." Ottawa: Canadian Press, Tuesday, December 17, 1985. 164

"Lobbyists aim for law-firm image, try to play down their political ties," Monday, April 18, 1988.

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Collner, Andrew B, "Managing Public Affairs" in Public Affairs, vol. 34, No. 3 (Autumn, 1984).

Harrington, Denise. "Lobbying for Power at Queen's Park" in The Toronto Sfar. Monday, August 4,1986, p. 45.

"Province may curb lobbyists Peterson says" in The Toronto Súar. Thursday, October 30, 1986, p.AB.

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Kohut, John. "Lobbyist registratíon just more papen¡/ork?" in The Clobe and Mail. Monday, June 5, 1989.

Maclean, Lori. "Lobbyists question Toronto bylaw placing them under public scrutiny" tn The Globe and Mail. )uly 23,1990, p. 48.

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"sunday shopping fight demonstrates new lobbying style," tbid.

"The pros have prices to fit different clients," /bid.

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Govern ment Publ icatì ons

Canada, Consumer and Corporate Affairs. "Annual Report for the year ended March 31, 1991," Lobbyists Registration Ácf. Ottawa: Minister of Supply and Services, 1991.

"Annual Report for the year ended March 3'1, '1990," Lobbyists Registration AcL Ottawa: Minister of Supply and Services, 1990. 166

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lnformation on the Lobbyists Registration Act and Regulations. Minister of Supply and Services, 1989.

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Canada, Covernment of. Ihe Lobbyists Registration Act. Ottawa: The Queen's Printer for Canada, 1989.

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B¡ll C-82. June 30, 1987,

Commons Debates. March B, 1988.

Commons Debates. March 14,1988.

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Commons Debates. July 15, 1988.

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Commons Debates. July 25, 1988.

Canadian Council on Social Development. /ssues for Citizen lnformation Services. Ottawa: The Canada Council on Social DevelopmenL, 1971.

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lnterest Groups and Parliament, Ottawa,72-13 April,7989 Quebec City, lune 1,'1989. Ottawa: The Croup, 1989. 167

Correspondence

Letter from Lobbyists Registration Branch November 9, 1990.

Letter from D. Tessier, Corporation House, Ottawa, December 2, 1991.

Letter from Corrine Maclaurin, Registrar, Lobbyists Registration Branch, February 12,1991.

Letter from Bill BIaikie, M.P., March 2, 1991.

Letter from Consumer and Corporate Affairs, Canada, March 29,1991.

Letter from Corinne Maclaurin, Registrar, Lobbyists Registration Branch, May 2, 1991.

Letter from Bill Blaikie, M.P., May 6,1991.

Letter from Ron Duhamel, M.P., May 16,1991.

Letter from Corinne Maclaurin, Registrar, Lobbyists Registration Branch, June 28,1991.